Criminal O.P. No.351 of 2012

22nd November, 2013

Petitioner Counsel: Mr. ARPANBEHL, Mr. M.A.GOUTHAMAN
Respondent Counsel: Mr. AR.L. SUNDARESAN, Mr. M. GURUPRASAD
Other Counsel: Mr. P.N. PRAKASH

Cases Cited:
K. Bhaskaran Vs. Sankaran Vaidhyan Balan, 1999(4) ALL MR 452 (S.C.) =(1999) 7 SCC 510 [Para 6,7,24]
K. Bhaskaran Vs. Sankaran Vaidhyan Balan, 1999 ALL MR (Cri) 1845 (S.C.) =(1999) 7 SCC 510 [Para 6,7,24]
Shri Ishar Alloy Steels Ltd. Vs. Jayaswals Neco Ltd., 2001 ALL MR (Cri) 578 (S.C.)=(2001) 3 SCC 609 [Para 6,7]
Harman Electronics (P) Ltd. Vs. National Panasonic India (P) Ltd., 2009 ALL MR (Cri) 280 (S.C.) =(2009) 1 SCC 720 [Para 6]
Harman Electronics (P) Ltd. Vs. National Panasonic India (P) Ltd., 2009(1) ALL MR 479 (S.C.) =(2009) 1 SCC 720 [Para 6]
Kesho Nath Khurana Vs. Union of India, 1981 Supp SCC 38 [Para 6]
Trisuns Chemical Industry Vs. Rajesh Agarwal, 1999 ALL MR (Cri) 1916 (S.C.) =(1999) 8 SCC 686 [Para 6,18]
Y. Abraham Ajith Vs. Inspector of Police, 2004 ALL MR (Cri) 3400 (S.C.) =(2004) 8 SCC 100 [Para 6,7,19]
Vir Prakash Sharma Vs. Anil Kumar Agarwal, 2007 ALL MR (Cri) 2618 (S.C.) =(2007) 7 SCC 373 [Para 6]
State of H.P. Vs. Pirthi Chand, (1996) 2 SCC 37 [Para 6]
Kerala State Science & Technology Museum Vs. Rambal Co., (2006) 6 SCC 258 [Para 6]
Pritish Tewari Vs. Vista Security Technics Pvt. Ltd., (2011) 3 RCR(Cri) 137 : (2011) 2 MLJ (Crl) 357 [Para 6,7]
Grandlay Electricals Vs. Ess Ess Enterprises, (2012) 2 Bankmann 473 [Para 6]
GVPR Engineers Ltd. & Ors. Vs. A.K.Tiwari, Crl.M.C.3698/2009 & Crl.M.A.12569/2009, Dt.31/01/2011 [Para 6]
Mohammed Haneef Vs. Shankarraj, Crl.O.P.Nos.3265/2010, Dt.13/06/2011 [Para 6]
Times Business Solution Ltd. Vs. Debayan Bagehi, Crl.M.C.No.280/2010, Dt.01/02/2010 [Para 6]
Ms.Hema Chaturvedi Vs. Sunint Enterprises Pvt. Ltd., Crl.M.C.213/2010, Dt.29/10/2010 [Para 6]
Smt. Nutan Damodar Prabhu Vs. Ravindra Vasant Kenkre, 2008 ALL MR (Cri) 446 =2007 (109) Bom.L.R.2779 [Para 6]
Surjeet Singh Vs. G.E.Capital Transport Services & Anr., 167 (2010) DLT 449 [Para 6]
Mountain Mist Agro India (Pvt.) Ltd. & Anr. Vs. S.Subramaniyam, 2009 ALL MR (Cri) JOURNAL 115 =149 (2008) DLT 40 [Para 6]
Nishant Aggarwal Vs. Kailash Kumar Sharma, 2013 ALL SCR 2531 =CDJ 2013 SC 543 : 2013 SAR (Crl) 796 [Para 7,22]
Rattiram Vs. State of M.P., 2012 ALL SCR 1594 =(2012) 4 SCC 516 [Para 7]
Crompton Greaves Ltd. Vs. Kantibhai, Prop.Mahavir, 2012 ALL MR (Cri) 2937 =2012 (2) MWN (Cr.) (DCC) 144 (Bom.) [Para 7]
Surendrapal Singh Chawla Vs. State of Gujarat & Anr., 2010 (3) GCD 2065 (Guj) [Para 7]
P. Soman Vs. Fullerton India Credit Company Ltd., Rep. by S. Saravanan, 2011 (3) MWN (Cr.) (DCC) 33 [Para 7]
A.S.Malan Vs. S. Venkatesan, (2012) 3 MLJ(Cri) 304 [Para 7]
Chief Enforcement Officer Vs. Videocon International Ltd., 2008 ALL SCR 517=2008 (2) SCC 492 [Para 19]
Manikonda Satyanarayana Vs. State, AIR 1955 Andhra 44 [Para 21]
Panna Lal & Ors. Vs. State, AIR 1952 All 657 [Para 21]
Sashti Gopal Samui & Anr. Vs. Haridas Bagdi, AIR 1938 Cal 415 [Para 21]
Ambika Singh & Ors. Vs. Emperor, AIR 1918 Pat 676 [Para 21]
Emperor Vs. Gokal, (1904) 1 Cri LJ 1056 [Para 21]
Muhammad & Anr. Vs. Emperor, 1905 (2) Cri LJ 369 [Para 21]
Escorts Ltd. Vs. Rama Mukherjee, 2013 ALL MR (Cri) 4060 (S.C.) =2013 (4) MLJ (Crl) 50 (SC) [Para 22]

JUDGMENT

V. DHANAPALAN, J. :- The prayer in this petition is to call for the records in S.T.C.No.670 of 2011 on the file of Judicial Magistrate No.II, Erode, and quash the same.

2. This matter was directed to be listed before a Larger Bench, comprising three Judges, on reference by a learned single Judge, to decide the following issues :

(i) During post cognizance stage, if the Magistrate is convinced that he lacks territorial jurisdiction to try the case, can it be lawful for the Magistrate to submit the case records along with a report to the Chief Judicial Magistrate (either in the same State or outside) to whom he is not subordinate ?

(ii) In exercise of its inherent powers, whether the High Court can quash the cognizance taken by a Magistrate who lacks territorial jurisdiction to try the case ?

(iii) During post cognizance stage, whether the High Court can order return of the complaint and the connected records to the complainant so as to enable him to go before the Magistrate having territorial jurisdiction outside the jurisdiction of the said High Court ?

(iv) During post cognizance stage, whether the High Court can simply direct the Magistrate to return the complaint without interfering with the order taking cognizance and if so whether all the records including statements recorded under Sections 200 & 201 of Cr.P.C. and the report of the Police Officer under Section 202 of Cr.P.C. can also be returned along with the complaint for presentation before the jurisdictional Magistrate ?

(v) If it is so held that the High Court can quash the order taking cognizance and consequently direct the Magistrate to return the complaint, whether the other records such as statements recorded under Sections 200 & 201 of Cr.P.C. and the report of the Police Officer under Section 202 of Cr.P.C. are also to be returned along with the complaint for presentation before the jurisdictional Magistrate ?

3. When the above five questions were referred by the learned single Judge for answer by the Full Bench, the earlier Full Bench, in addition to the above five questions, framed an additional issue for answer, as follows :

"Whether the presentation of a cheque in a bank where the complainant maintains the account would confer jurisdiction to the Magistrate within whose jurisdiction the bank is situate, to take cognizance of the case under Section 138 of the Negotiable Instruments Act ?

4. Now that two Judges of the earlier Full Bench have since retired, the matter is directed to be listed before this Full Bench, by the Hon'ble Acting Chief Justice. Accordingly, the matter is taken up.

5. Before deciding the above points, let us have a glance at the facts of the case. The respondent/complainant is doing textile business in Karungalpalayam, Erode District. On 10.07.2010, the petitioner/accused purchased textiles from the respondent on credit as per Invoice No.7 for a sum of Rs.1,47,262/-. In discharge of the sale consideration, the petitioner issued a post dated cheque dated 10.09.2010 drawn on ING Vysya Bank Limited, New Delhi, for the said sum. The respondent presented the said cheque for collection in his account in Bank of India at Erode. It was returned dishonoured by the said bank on 04.02.2011 for "insufficient funds". Thereafter, the respondent issued a legal notice dated 24.02.2011 from Erode. Having received the said notice at New Delhi, the petitioner issued a reply notice, but, he did not pay the amount, as demanded. Thus, according to the respondent, the petitioner has committed an offence punishable under Section 138 of the Negotiable Instruments Act.

6. Mr.Arpanbehl, learned counsel for the petitioner, would contend that the cheque was drawn on ING Vysya Bank, New Delhi; it was dishonoured in New Delhi; the legal notice was also received only in New Delhi and hence the entire cause of action for the offence had taken place only in New Delhi. He would further contend that mere supply of goods from Erode; receipt of cheque by the respondent at Erode; presentation of the cheque for collection in the account maintained by the respondent in a bank at Erode and the issuance of legal notice from Erode do not constitute either part or whole of the cause of action and, therefore, the order of the Judicial Magistrate No.II, Erode, taking cognizance of the complaint given by the respondent is wholly without jurisdiction and, as such, the entire case is to be thrown to the winds. In support of his contentions, he would rely upon the following decisions :

(i) K. Bhaskaran v. Sankaran Vaidhyan Balan, (1999) 7 SCC 510 : [1999(4) ALL MR 452 (S.C.) : 1999 ALL MR (Cri) 1845 (S.C.)]:

"14. The offence under Section 138 of the Act can be completed only with the concatenation of a number of acts. The following are the acts which are components of the said offence: (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."

(ii) Shri Ishar Alloy Steels Ltd. v. Jayaswals Neco Ltd., (2001) 3 SCC 609 : [2001 ALL MR (Cri) 578 (S.C.)]:

"9....The bank" referred to in clause (a) to the proviso to Section 138 of the Act would mean the drawee bank on which the cheque is drawn and not all banks where the cheque is presented for collection including the bank of the payee, in whose favour the cheque is issued.

10......A combined reading of Sections 3, 72 and 138 of the Act would leave no doubt in our mind that the law mandates the cheque to be presented at the bank on which it is drawn if the drawer is to be held criminally liable. Such presentation is necessarily to be made within six months at the bank on which the cheque is drawn, whether presented personally or through another bank, namely, the collecting bank of the payee."

(iii) Harman Electronics (P) Ltd. v. National Panasonic India (P) Ltd., (2009) 1 SCC 720 : [2009 ALL MR (Cri) 280 (S.C.) : 2009(1) ALL MR 479 (S.C.)]

"13. It is one thing to say that sending of a notice is one of the ingredients for maintaining the complaint but it is another thing to say that dishonour of a cheque by itself constitutes an offence. For the purpose of proving its case that the accused had committed an offence under Section 138 of the Negotiable Instruments Act, the ingredients thereof are required to be proved. What would constitute an offence is stated in the main provision. The proviso appended thereto, however, imposes certain further conditions which are required to be fulfilled before cognizance of the offence can be taken. If the ingredients for constitution of the offence laid down in provisos (a), (b) and (c) appended to Section 138 of the Negotiable Instruments Act are intended to be applied in favour of the accused, there cannot be any doubt that receipt of a notice would ultimately give rise to the cause of action for filing a complaint. As it is only on receipt of the notice that the accused at his own peril may refuse to pay the amount. Clauses (b) and (c) of the proviso to Section 138 therefore must be read together. Issuance of notice would not by itself give rise to a cause of action but communication of the notice would."

(iv) Kesho Nath Khurana v. Union of India, 1981 Supp SCC 38 :

"It was this question which was referred by the Single Judge to the Division Bench and the Division Bench disposed it of by its judgment dated April 7, 1980. The Division Bench held that the order dated January 21, 1963 made by the Chief Settlement Commissioner was not final and binding in the civil proceeding and it did not exclude the jurisdiction of the civil court to decide whether there was any encroachment by the respondent on the property conveyed to the appellant under the sale certificate dated June 7, 1963 read with the corrigendum dated September 22, 1964 issued by the District Rent and Managing Officer, Simla, pursuant to the auction sale held on September 25, 1955. Now it is obvious that since only the aforesaid question of law was referred by the Single Judge to the Division Bench, the Division Bench should have sent the matter back to the Single Judge after deciding the question of law referred to them. But instead the Division Bench proceeded to dispose of the second appeal on merits and dismissed it with costs. We think that the Division Bench was in error in following this procedure. The Division Bench ought to have sent the appeal back to the Single Judge with the answer rendered by them to the question referred by the Single Judge and left it to the Single Judge to dispose of the second appeal according to law."

(v) Trisuns Chemical Industry v. Rajesh Agarwal, (1999) 8 SCC 686 : [1999 ALL MR (Cri) 1916 (S.C.)]:

"14. The jurisdictional aspect becomes relevant only when the question of enquiry or trial arises. It is therefore a fallacious thinking that only a Magistrate having jurisdiction to try the case has the power to take cognizance of the offence. If he is a Magistrate of the First Class his power to take cognizance of the offence is not impaired by territorial restrictions. After taking cognizance he may have to decide as to the court which has jurisdiction to enquire into or try the offence and that situation would reach only during the post-cognizance stage and not earlier."

(vi) Y. Abraham Ajith v. Inspector of Police, (2004) 8 SCC 100 : [2004 ALL MR (Cri) 3400 (S.C.)]

"19. When the aforesaid legal principles are applied, to the factual scenario disclosed by the complainant in the complaint petition, the inevitable conclusion is that no part of cause of action arose in Chennai and, therefore, the Magistrate concerned had no jurisdiction to deal with the matter. The proceedings are quashed. The complaint be returned to Respondent 2 who, if she so chooses, may file the same in the appropriate court to be dealt with in accordance with law. The appeal is accordingly allowed."

(vii) Vir Prakash Sharma v. Anil Kumar Agarwal, (2007) 7 SCC 373 : [2007 ALL MR (Cri) 2618 (S.C.)]

"16. ......There is nothing on record to show that any part of the cause of action arose within the jurisdiction of the court concerned. Even if such statements had been made, the same admittedly have been made only at the place where the appellant resides. The learned Magistrate, therefore, had no jurisdiction to issue the summons."

(viii)State of H.P. v. Pirthi Chand, (1996) 2 SCC 37 :

"13. When the remedy under Section 482 is available, the High Court would be loath and circumspect to exercise its extraordinary power under Article 226 since efficacious remedy under Section 482 of the Code is available. When the court exercises its inherent power under Section 482, the prime consideration should only be whether the exercise of the power would advance the cause of justice or it would be an abuse of the process of the court....."

(ix) Kerala State Science & Technology Museum v. Rambal Co., (2006) 6 SCC 258 :

"8. It is fairly well settled that when reference is made on a specific issue either by a learned Single Judge or Division Bench to a larger Bench i.e. Division Bench or Full Bench or Constitution Bench, as the case may be, the larger Bench cannot adjudicate upon an issue which is not the question referred to."

(x) Pritish Tewari v. Vista Security Technics Private Limited, [2011] 3 RCR(Cri) 137, Madras High Court :

"25. Therefore, the Courts which has jurisdiction, to the offence under Section 138 of the Act shall be

1) the place where the cheque has been drawn;

2) the place where the cheque returned unpaid by the drawee bank;

3) the place where, the statutory notice demanding payment of the cheque was served on the drawer."

(xi)Grandlay Electricals Vs. Ess Ess Enterprises, [2012] 2 Bankmann 473, Delhi High Court :

"....Hence, in order to attract the criminal liability under Section 138, N.I. Act, the cheque must be presented to the drawee bank within the statutory period either personally or through a collecting bank. That being the law, the place of location of collecting bank through which cheque was sent to some other branch jurisdiction would not confer jurisdiction on the courts havinq territorial jurisdiction over that place."

(xii) GVPR Engineers Limited and Ors. v. A.K.Tiwari : Crl.M.C.3698/2009 and Crl.M.A.12569/2009, dated 31.01.2011, Delhi High Court :

"26. Undisputedy, the cheque in question was drawn at ICICI Bank Limited, Hyderabad Branch and the cheque amount was supposed to be paid from the account of the petitioner company maintained at Hyderabad Branch. If ICICI Bank, as a result of computerisation, adopted a policy to provide a facility of encashment of cheques at par at any branch of ICICI Bank it is only for the convenience of the customer but the encashing branch, by no means, becomes the drawee bank for the reason that before encashing the cheque at par, the branch in question is expected to verify from the drawee branch whether or not there was any impediment in encashment of the cheque drawn at the said branch.

Since in the event of encashment, the amount of cheque was to be debited in the account of the petitioner maintained at ICICI Bank, Hyderabad branch, the amount was only payable by the drawee branch i.e., Hyderabad branch. Thus, the aforesaid printed words "payable at par at all branches of ICICI bak Limited in India" will not change the character of drawee bank and will not confer territorial jurisdiction on Delhi courts."

(xiii)Mohammed Haneef v. Shankarraj, Crl.O.P.Nos.3265/2010, dated 13.06.2011, Madras High Court :

"Issuing of cheque per-se is not an offence. Presentation of the cheque and the dishonour of the cheque by the drawee bank may be referred to as commencement of the offence, which is followed by issuing of a statutory notice demanding payment and giving an opportunity to the drawee to avoid criminal prosecution.

Therefore, this court has already held that the jurisdiction for a trial of the offence shall be place where a) the cheqeue has been issued b) the place where the cheque has been returned unpaid by the drawee bank and c) the place where the statutory notice demanding payment of the cheque was served or received."

(xiv)Times Business Solution Limited v. Debayan Bagehi, Crl.M.C.No.280/2010, dated 01.02.2010, Delhi High Court :

"Bare perusal of 138 of the Act clearly shows that cheque has to be presented on the drawer's bank, where account is being maintained. It is only banker of the drawer which will be in a position to say that the cheque amount exceeds arrangement. Only drawer's bank can return the cheque unpaid for "insufficient funds in the account of drawer" or for any other reason. The payee of the cheque has no option but to present the cheque for encashment to the drawer's bank, on which the cheque had been drawn, either personally or through a bank. The payee of the cheque has the option to present the cheque in any bank but to attract the criminal liability of the drawer of the cheque such collecting bank is obliged to present the cheque to drawer's bank on which the cheque is drawn that too within a period of six months. In my opinion, merely because the payee had deposited the cheque at Delhi would not mean that he had presented the cheque at Delhi."

(xv)Ms.Hema Chaturvedi v. Sunint Enterprises Pvt.Ltd, Crl.M.C.213/2010, dated 29.10.2010, by Delhi High Court :

"Bare perusal of the aforesaid provision shows that the cheque has to be presented on the drawer's bank where account is being maintained by him. It is only the banker of the drawer which will be in a position to say that the cheque amount exceeds arrangement. Only drawer's bank can return the cheque unpaid for "insufficient funds in the account of drawer" or for any other reason. The payee of the cheque has no option but to present the cheque for encashment to the drawer's bank, on which the cheque has been drawn, either personally or through a bank. The payee of the cheque has the option to present the cheque in any bank but to attract the criminal liability of the drawer such collecting bank is obliged to present the cheque to drawer's bank on which the cheque is drawn that too within a period of six months. In view of this, merely because the payee had deposited the cheque at Delhi would not mean that he had presented the cheque at Delhi."

(xvi)Smt.Nutan Damodar Prabhu v. Ravindra Vasant Kenkre, 2007 (109) Bom.L.R.2779 : [2008 ALL MR (Cri) 446], Bombay High Court :

"Practice of presenting a cheque to payee's or holder's own banker does not make such banker the drawee. Such a banker merely undertakes to present the cheque on behalf of the holder to the drawee bank for clearance. Such a banker acts as agent of holder and not agent of the draweee bank. This can be clear from the fact that it is the holder who has to bear the expenses in clearing the cheque and not the drawee bank. Even between different branches of the same bank, branch at which holder has an account does not become agent of the drawee branch for accepting the cheque unless the cheque is one marked as payable at par all branches of the bank.

It is therefore obvious that since the subject cheques were issued by the accused and were payable at the Bank within the jurisdiction of JMFC Panaji, it is the JMFC, Panaji who would have jurisdiction to try the offence under Section 138 of the Act. As observed by this Court, though the complainant may have accounts at several places, it does not follow that the complainant could file complaint at the place where he had an account because jurisdiction would have to be gathered from the place where money was intended to be paid."

(xvii) Surjeet Singh v. G.E.Capital Transport Services and Anr.,167 (2010) DLT 449, Delhi High Court :

"....is that a cheque is deemed to have been presented to the banker of the drawer irrespective of the fact whether it is deposited by the payee in his own bank. The banker of the payee after receiving the cheque from him is required to present it to the banker of the drawer and therefore if the cheque issued from a bank in Raipur is deposited in Delhi, the bank in which it is deposited in Delhi, is required to present it to the bank at Raipur, for the purpose of encashment. Therefore, it cannot be said that the cheque issued by the petitioner was presented in Delhi. Despite the fact that the bank in which the respondent No.2 had an account was in Delhi, the cheque shall be deemed to have been presented only to the bank at Raipur on which it was drawn. Therefore, deposit of cheque in Delhi would not confer jurisdiction on Delhi court to try this complaint.

Since sending of notice from Delhi to Raipur does not confer jurisdiction on Delhi court in view of the decision of the Hon'ble Supreme Court in the case of Harman Electronics Private Limited (supra) and the deposit of cheque with the banker of respondent No.2 in Delhi also does not confer jurisdiction of Delhi court when the cheque is presented to a bank outside Delhi and there is no other ground which would confer jurisdiction on Delhi Court, it cannot be said that the Delhi Court has the jurisdiction to try this complaint."

(xviii) Mountain Mist Agro India (Pvt.) Ltd. and Anr. v. S.Subramaniyam, 149 (2008) DLT 40 : [2009 ALL MR (Cri) JOURNAL 115], Delhi High Court :

"....the learned single Judge referred to the decision of the Supreme Court in Shri Ishar Alloy Steels Ltd. v. Jayaswal's Neco Ltd.MANU/SC/0121/2001 : 2001 CriLJ 1250. In the said case, one of the main issues was what is meant by "the bank" as mentioned in Clause (a) of the proviso to Section 138 of the Negotiable Instruments Act,1881. The facts of the said case reliedupon by the respondent was considered by the learned Single Judge. In the said case, i.e., Shri Ishar alloy Steels Ltd. (supra), the Supreme Court held that "the bank" referred to in Clause (a) of the proviso to said Section 138 had reference to the drawee bank on which the cheque is drawn and not all banks where the cheque is presented for collection including the bank of the payee in whose favour the cheque is issued."

7. Conversely, Mr.AR.L.Sundaresan, learned Senior Counsel appearing for the respondent, would contend that the respondent is doing business in Erode; the purchase order was given in Erode; the delivery of goods was taken in Erode and, thus, there is a part of cause of action in Erode. He would also submit that the cheque in question is payable at par on all branches of the drawee bank in India and the cheque was presented for collection at Erode in the account of the respondent, which, in turn, was forwarded to the ING Vysya Bank Limited at Bangalore, where it was dishonoured. According to the learned Senior Counsel, the presentation of cheque at Erode gives rise to part of cause of action and, hence, the Judicial Magistrate No.II, Erode, has got territorial jurisdiction to entertain the complaint. He would cite the following authorities :

(i) Nishant Aggarwal v. Kailash Kumar Sharma, CDJ 2013 SC 543 : [2013 ALL SCR 2531]

"11. We fail to comprehend as to how the trial court could have found so regarding the jurisdiction question. Under Section 177 of the Code "every offence shall ordinarily be enquired into and tried in a court within whose jurisdiction it was committed". The locality where the Bank (which dishonoured the cheque) is situated cannot be regarded as the sole criterion to determine the place of offence. It must be remembered that offence under Section 138 would not be completed with the dishonour of the cheque. It attains completion only with the failure of the drawer of the cheque to pay the cheque amount within the expiry of 15 days mentioned in clause (c) of the proviso to Section 138 of the Act. It is normally difficult to fix up a particular locality as the place of failure to pay the amount covered by the cheque. A place, for that purpose, would depend upon a variety of factors. It can either be at the place where the drawer resides or at the place where the payee resides or at the place where either of them carries on business. Hence, the difficulty to fix up any particular locality as the place of occurrence for the offence under Section 138 of the Act.

It is clear that this Court also discussed the relevant provisions of the Code, particularly, Sections 177, 178 and 179 and in the light of the language used, interpreted Section 138 of the N.I. Act and laid down that Section 138 has five components, namely,

i) drawing of the cheque;

ii) presentation of the cheque to the bank;

iii) returning the cheque unpaid by the drawee bank;

iv) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount; and

v) failure of the drawer to make payment within 15 days of the receipt of the notice.

After saying so, this Court concluded that the complainant can choose any one of the five places to file a complaint. The further discussion in the said judgment is extracted hereunder:

"14. The offence under Section 138 of the Act can be completed only with the concatenation of a number of acts. The following are the acts which are components of the said offence: (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.

15. It is not necessary that all the above five acts should have been perpetrated at the same locality. It is possible that each of those five acts could be done at five different localities. But a concatenation of all the above five is a sine qua non for the completion of the offence under Section 138 of the Code. In this context a reference to Section 178(d) of the Code is useful. It is extracted below:

"178. (a)-(c) * * *

(d) where the offence consists of several acts done in different local areas,

it may be enquired into or tried by a court having jurisdiction over any of such local areas."

16. Thus it is clear, if the five different acts were done in five different localities any one of the courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Section 138 of the Act. In other words, the complainant can choose any one of those courts having jurisdiction over any one of the local areas within the territorial limits of which any one of those five acts was done. As the amplitude stands so widened and so expansive it is an idle exercise to raise jurisdictional question regarding the offence under Section 138 of the Act."

9) Para 11 of K. Bhaskaran (supra), as quoted above, clarified the place in the context of territorial jurisdiction as per the fifth component, namely, "failure of the drawer to make payment within 15 days of the receipt." As rightly pointed out by learned senior counsel for the respondent, the place of failure to pay the amount has been clearly qualified by this Court as the place where the drawer resides or the place where the payee resides. In view of the same and in the light of the law laid down by this Court in K. Bhaskaran (supra), we are of the view that the learned Magistrate at Bhiwani has territorial jurisdiction to try the complaint filed by the respondent as the respondent is undisputedly a resident of Bhiwani. Further, in K. Bhaskaran (supra), while considering the territorial jurisdiction at great length, this Court has concluded that the amplitude of territorial jurisdiction pertaining to a complaint under the N.I. Act is very wide and expansive and we are in entire agreement with the same.

13) As observed earlier, we must note that in K. Bhaskaran (supra), this Court has held that Section 178 of the Code has widened the scope of jurisdiction of a criminal court and Section 179 of the Code has stretched it to still a wider horizon. Further, for the sake of repetition, we reiterate that the judgment in Ishar Alloy (supra) does not affect the ratio in K. Bhaskaran (supra) which provides jurisdiction at the place of residence of the payer and the payee. We are satisfied that in the facts and circumstances and even on merits, the High Court rightly refused to exercise its extraordinary jurisdiction under Section 482 of the Code and dismissed the petition filed by the appellant accused."

(ii) K. Bhaskaran v. Sankaran Vaidhyan Balan, (1999) 7 SCC 510 : [1999(4) ALL MR 452 (S.C.) : 1999 ALL MR (Cri) 1845 (S.C.)] :

"11. We fail to comprehend as to how the trial court could have found so regarding the jurisdiction question. Under Section 177 of the Code "every offence shall ordinarily be enquired into and tried in a court within whose jurisdiction it was committed". The locality where the Bank (which dishonoured the cheque) is situated cannot be regarded as the sole criterion to determine the place of offence. It must be remembered that offence under Section 138 would not be completed with the dishonour of the cheque. It attains completion only with the failure of the drawer of the cheque to pay the cheque amount within the expiry of 15 days mentioned in clause (c) of the proviso to Section 138 of the Act. It is normally difficult to fix up a particular locality as the place of failure to pay the amount covered by the cheque. A place, for that purpose, would depend upon a variety of factors. It can either be at the place where the drawer resides or at the place where the payee resides or at the place where either of them carries on business. Hence, the difficulty to fix up any particular locality as the place of occurrence for the offence under Section 138 of the Act.

12. Even otherwise the rule that every offence shall be tried by a court within whose jurisdiction it was committed is not an unexceptional or unchangeable principle. Section 177 itself has been framed by the legislature thoughtfully by using the precautionary word "ordinarily" to indicate that the rule is not invariable in all cases. Section 178 of the Code suggests that if there is uncertainty as to where, among different localities, the offence would have been committed the trial can be had in a court having jurisdiction over any of those localities. The provision has further widened the scope by stating that in case where the offence was committed partly in one local area and partly in another local area the court in either of the localities can exercise jurisdiction to try the case. Further again, Section 179 of the Code stretches its scope to a still wider horizon. It reads thus:

"179. Offence triable where act is done or consequence ensues.-When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be enquired into or tried by a court within whose local jurisdiction such thing has been done or such consequence has ensued."

13. The above provisions in the Code should have been borne in mind when the question regarding territorial jurisdiction of the courts to try the offence was sought to be determined.

14. The offence under Section 138 of the Act can be completed only with the concatenation of a number of acts. The following are the acts which are components of the said offence: (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.

15. It is not necessary that all the above five acts should have been perpetrated at the same locality. It is possible that each of those five acts could be done at five different localities. But a concatenation of all the above five is a sine qua non for the completion of the offence under Section 138 of the Code. In this context a reference to Section 178(d) of the Code is useful. It is extracted below:

"178. (a)-(c) * * *

(d) where the offence consists of several acts done in different local areas,

it may be enquired into or tried by a court having jurisdiction over any of such local areas."

16. Thus it is clear, if the five different acts were done in five different localities any one of the courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Section 138 of the Act. In other words, the complainant can choose any one of those courts having jurisdiction over any one of the local areas within the territorial limits of which any one of those five acts was done. As the amplitude stands so widened and so expansive it is an idle exercise to raise jurisdictional question regarding the offence under Section 138 of the Act."

(iii) Y. Abraham Ajith v. Inspector of Police, (2004) 8 SCC 100 : [2004 ALL MR (Cri) 3400 (S.C.)] :

"7. Section 177 of the Code deals with the ordinary place of inquiry and trial, and reads as follows: "177. Ordinary place of inquiry and trial.-Every offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed."

8. Sections 177 to 186 deal with venue and place of trial. Section 177 reiterates the well-established common-law rule referred to in Halsbury's Laws of England (Vol. 9, para 83) that the proper and ordinary venue for the trial of a crime is the area of jurisdiction in which, on the evidence, the facts occur and which are alleged to constitute the crime. There are several exceptions to this general rule and some of them are, so far as the present case is concerned, indicated in Section 178 of the Code which reads as follows:

"178. Place of inquiry or trial.-(a) When it is uncertain in which of several local areas an offence was committed, or

(b) where an offence is committed partly in one local area and partly in another, or

(c) where an offence is continuing one, and continues to be committed in more local areas than one, or

(d) where it consists of several acts done in different local areas,

it may be inquired into or tried by a court having jurisdiction over any of such local areas."

14. It is settled law that cause of action consists of a bundle of facts, which give cause to enforce the legal inquiry for redress in a court of law. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the allegedly affected party a right to claim relief against the opponent. It must include some act done by the latter since in the absence of such an act no cause of action would possibly accrue or would arise."

(iv) Rattiram v. State of M.P., (2012) 4 SCC 516 : [2012 ALL SCR 1594]

"59. At this juncture, we would like to refer to two other concepts, namely, speedy trial and treatment of a victim in criminal jurisprudence based on the constitutional paradigm and principle. The entitlement of the accused to speedy trial has been repeatedly emphasised by this Court. It has been recognised as an inherent and implicit aspect in the spectrum of Article 21 of the Constitution. The whole purpose of speedy trial is intended to avoid oppression and prevent delay. It is a sacrosanct obligation of all concerned with the justice dispensation system to see that the administration of criminal justice becomes effective, vibrant and meaningful. The concept of speedy trial cannot be allowed to remain a mere formality [see Hussainara Khatoon (1) v. State of Bihar33, Moti Lal Saraf v. State of J&K34 and Raj Deo Sharma v. State of Bihar35].

60. While delineating on the facets of speedy trial, it cannot be regarded as an exclusive right of the accused. The right of a victim has been given recognition in Mangal Singh v. Kishan Singh36 wherein it has been observed thus: (SCC p. 307, para 14)

"14. . Any inordinate delay in conclusion of a criminal trial undoubtedly has a highly deleterious effect on the society generally, and particularly on the two sides of the case. But it will be a grave mistake to assume that delay in trial does not cause acute suffering and anguish to the victim of the offence. In many cases the victim may suffer even more than the accused. There is, therefore, no reason to give all the benefits on account of the delay in trial to the accused and to completely deny all justice to the victim of the offence."

66. Judged from these spectrums and analysed on the aforesaid premises, we come to the irresistible conclusion that the objection relating to non-compliance with Section 193 of the Code, which eventually has resulted in directly entertaining and taking cognizance by the Special Judge under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, does not vitiate the trial and on the said ground alone, the conviction cannot be set aside or there cannot be a direction of retrial and, therefore, the decision rendered in Bhooraji4 lays down the correct law inasmuch as there is no failure of justice or no prejudice is caused to the accused.

67. The decisions rendered in Moly2 and Vidyadharan3 have not noted the decision in Bhooraji4, a binding precedent, and hence they are per incuriam and further, the law laid down therein, whereby the conviction is set aside or the matter is remanded after setting aside the conviction for fresh trial, does not expound the correct proposition of law and, accordingly, they are hereby, to that extent, overruled."

(v) Shri Ishar Alloy Steels Ltd. v. Jayaswals Neco Ltd., (2001) 3 SCC 609 : [2001 ALL MR (Cri) 578 (S.C.)]

"6. Before adverting to the various provisions of law as applicable in the case, it has to be kept in mind that the law relating to negotiable instruments is the law of the commercial world which was enacted to facilitate the activities in trade and commerce making provision of giving sanctity to the instruments of credit which could be deemed to be convertible into money and easily passable from one person to another. In the absence of such instruments, the trade and commerce activities were likely to be adversely affected as it was not practicable for the trading community to carry on with it the bulk of the currency in force. The introduction of negotiable instruments owes its origin to the bartering system prevalent in the primitive society. The negotiable instruments are, in fact, the instruments of credit being convertible on account of the legality of being negotiated and thus easily passable from one hand to another. The source of Indian law relating to such instruments is admittedly the English common law. The main object of the Act is to legalise the system by which instruments contemplated by it could pass from hand to hand by negotiation like any other goods. The purpose of the Act was to present an orderly and authoritative statement of the leading rules of law relating to the negotiable instruments. The Act intends to legalise the system under which claims upon mercantile instruments could be equated with ordinary goods passing from hand to hand. To achieve the objective of the Act, the legislature in its wisdom thought it proper to make provision in the Act for conferring such privileges to the mercantile instruments contemplated under it and provide special procedure in case the obligation under the instrument was not discharged. It has always to be kept in mind that Section 138 of the Act creates an offence and the law relating to the penal provisions has to be interpreted strictly so that no-one can ingeniously or insidiously or guilefully or strategically be prosecuted.

9. The use of the words "a bank" and "the bank" in the section is an indicator of the intention of the legislature. The former is an indirect (sic indefinite) article and the latter is prefixed by a direct (sic definite) article. If the legislature intended to have the same meanings for "a bank" and "the bank", there was no cause or occasion for mentioning it distinctly and differently by using two different articles. It is worth noticing that the word "banker" in Section 3 of the Act is prefixed by the indefinite article "a" and the word "bank" where the cheque is intended to be presented under Section 138 is prefixed by the definite article "the". The same section permits a person to issue a cheque on an account maintained by him with "a bank" and makes him liable for criminal prosecution if it is returned by "the bank" unpaid. The payment of the cheque is contemplated by "the bank" meaning thereby where the person issuing the cheque has an account. "The" is the word used before nouns, with a specifying or particularising effect as opposed to the indefinite or generalising force of "a" or "an". It determines what particular thing is meant; that is, what particular thing we are to assume to be meant. "The" is always mentioned to denote a particular thing or a person. "The" would, therefore, refer implicitly to a specified bank and not any bank. "The bank" referred to in clause (a) to the proviso to Section 138 of the Act would mean the drawee bank on which the cheque is drawn and not all banks where the cheque is presented for collection including the bank of the payee, in whose favour the cheque is issued.

10. It, however, does not mean that the cheque is always to be presented to the drawer's bank on which the cheque is issued. The payee of the cheque has the option to present the cheque in any bank including the collecting bank where he has his account but to attract the criminal liability of the drawer of the cheque such collecting bank is obliged to present the cheque in the drawee or payee bank on which the cheque is drawn within the period of six months from the date on which it is shown to have been issued. In other words a cheque issued by (A) in favour of (B) drawn in a bank named (C) where the drawer has an account can be presented by the payee to the bank upon which it is drawn i.e. (C) bank within a period of six months or present it to any other bank for collection of the cheque amount provided such other bank including the collecting bank presents the cheque for collection to (C) bank. The non-presentation of the cheque to the drawee bank within the period specified in the section would absolve the person issuing the cheque of his criminal liability under Section 138 of the Act, who shall otherwise may be liable to pay the cheque amount to the payee in a civil action initiated under the law. A combined reading of Sections 3, 72 and 138 of the Act would leave no doubt in our mind that the law mandates the cheque to be presented at the bank on which it is drawn if the drawer is to be held criminally liable. Such presentation is necessarily to be made within six months at the bank on which the cheque is drawn, whether presented personally or through another bank, namely, the collecting bank of the payee."

(vi) Pritish Tewari v. Vista Security Technics Private Limited, Chennai,, (2011) 2 MLJ (Crl) 357, Madras High Court :

"24. Out of the five different acts settled by the Apex Court in K. Bhaskaran v. Sankaran Vaidhyan Balan and Another (supra) the territorial jurisdiction has now been resettled to

(a) where the cheque has been issued (2) where the cheque has been returned by the drawee bank and (3) where the notice has been received by the drawer. The place of presentation of the cheque to the holder's bank and the place of issue of notice will no more confer jurisdiction,

25. Therefore, the Courts which has jurisdiction, to the offence under Section 138 of the Act shall be

1) the place where the cheque has been drawn;

2) the place where the cheque returned unpaid by the drawee bank;

3) the place where, the statutory notice demanding payment of the cheque was served on the drawer.

26. According to the complainant ;

1) the complainant ' s office is at Chennai?

2) the transaction viz., the order was placed at Chennai and supply was effected at Chennai;

3) cheques were issued and presented at Chennai;

4) dishonour of cheque took place at Chennai;

5) notice was issued at Chennai.

27. The complainant would aver in the complaint that they had supplied various materials to the Pyroguard Engineering Pvt Ltd. having Office at New Delhi in respect of which the said Company had issued cheques drawn on HDFC Bank, Greater Kailash, New Delhi. There is no averment to show that the transaction was carried on at Channai and the cheques were issued at Chennai. Following the ratio laid down in K. Bhaskaran v. Sankaran Vaidhyan Balan and Another (supra) and Harman Electronics Private Limited and Another v. National Panasonic India Private Limited (supra) case, I am of the considered view that the Courts at New Delhi alone is having territorial jurisdiction for the trial of the alleged offence under Section 138 of the Act as the cheques were drawn at New Delhi and they were returned unpaid by the drawee bank at New Delhi and the statutory notice was served on the drawer demanding payment at New Delhi.

28. Though the petitions have been filed to quash the proceeding on the ground that the Judicial Magistrate Court at Alandur has no territorial jurisdiction, I am also in the considered view that the complainant must be given a chance to withdraw the complaints and present the same before the Courts at New Delhi which has jurisdiction to try the alleged offence under Section 138 of the Act. However, the presentation of the complaints before a Court which has no territorial jurisdiction itself is not a ground to quash the entire proceedings. Therefore, I am also of the considered view that the complainant must be given an opportunity to withdraw and present at before the appropriate Court which has territorial jurisdiction.

29. For the reasons stated above, all the criminal original petitions are disposed of directing the respondent to withdraw the complaints from the Court of the Judicial Magistrate, Alandur, within four weeks from the date of receipt of the order and present the same before the Courts at New Delhi which has territorial jurisdiction within a period of four weeks thereafter."

(vii) Crompton Greaves Limited Vs. Kantibhai, Prop.Mahavir, 2012 ALL MR (Cri) 2937 = 2012 (2) MWN (Cr.) (DCC) 144 (Bom.), Bombay High Court:

"23. The reference made to the Hon'ble Division Bench, in the present appeal,was only on a limited point as to whether the Court in whose jurisdiction the payee or holder in due course of cheque ordinarily resides or carries on business or works for gain or for that matter has a branch office shall have jurisdiction to enquire into or try the offence under section 138 of the Act or not. It is seen that the Division Bench, to which the reference was made in this appeal, has not held that the complaint cannot be filed at the place of the collecting bank. A perusal of the Judgment of the Hon'ble Division Bench of our High Court in "Preetha S. Babu"(supra), reveals that the Division Bench has agreed with the learned Single Judge's view in the case of "Ahuja Nandkishore Dongre Vs. State of Maharashtra", [2007 (1) Bom. C.R. (Cri.) 1031], to the extent that 'the bank' referred to in Clause (a) to proviso to section 138 of the Act would mean the drawee-bank on which the cheque was drawn. But the Division Bench has observed that the view taken by the learned Single Judge in that case in the context of jurisdiction of the Court to entertain complaint under section 138, that the cheque has to be presented to the drawee-bank at the place mentioned in the cheque and only the Court within whose jurisdiction, the drawee bank is situated will have jurisdiction to entertain the complaint and not the Court at another place where it is presented for realization needs to be reconsidered by a larger bench in an appropriate case. The Judgment of the Hon'ble Division bench in the case of "Preetha S. Babu" (supra), is an authoritative pronouncement based on the Judgment of the Hon'ble Supreme Court in the case of "K. Bhaskaran"(supra). It is an accepted rule or principle that the statement of law by a Bench is considered binding on a Bench of the same or lesser number of Judges. The principle held in paragraph 31 of the Judgment in "Preetha's case is binding on this Court. Therefore I hold that since the cheque was presented and returned unpaid/dishonoured by ICICI Bank at Ponda, the Ponda Court has jurisdiction to entertain and try the case."

(viii) Surendrapal Singh Chawla v. State of Gujarat & Anr., 2010 (3) GCD 2065 (Guj), Gujarat High Court :

"9. It appears from the above deposition that, there exists a system of core banking and on-line banking system by which it is very easy to verify on the day of presentation of cheque issued from any corner of the country as to whether there was any sufficient fund in the account of the drawer of a cheque or not. Said version is proved through the deposition of the Bank Officer wherein he has specifically stated that as per online banking system, the cheque in original is not required to be sent to the concerned branch from where it was issued because of the core banking and development of computer network system. Without sending the cheque to concerned bank, the branch in which the cheque is presented can also verify as to whether sufficient fund is available in the account of the drawer of the cheque or not. In the present case, the cheque was issued from the ICICI Bank, Kanpur Branch, and presented in the ICICI Bank, Gandhinagar Branch, and because of core banking system, Gandhinagar Branch on verifying the record wrote the endorsement of "insufficient fund". In view of the above, non-examination of the Officer who dealt with the cheque or non-production of counterfoil of pay-in-slip showing deposit of cheque does not mean that cheque was not presented with the bank nor does it create any doubt in the mind of the Court about the version given by the complainant. The applicant, therefore, would not be entitled to any benefit out of the afore referred judgments relied on by the learned Advocate for the applicant."

(ix) P. Soman Vs. Fullerton India Credit Company Ltd., Rep. by S. Saravanan, 2011 (3) MWN (Cr.) (DCC) 33, Madras High Court :

"9. At this juncture, it is appropriate to consider the following decisions relied upon by the learned counsel for the petitioner.

(a) (Shri Ishar Alloy Steels Ltd. v. Jayaswals Neco Ltd), in that it was specifically mentioned that the bank referred to in clause (a) to the proviso to Section 138 of the Negotiable Instruments Act, would mean the drawee-bank on which the cheque is drawn and not all banks where the cheque is presented for collection including the bank of the payee, in whose favour the cheque is issued. In this citation, it was held that the cheque should be presented within six months from the date of issuance of cheque and the cheque has been presented within six months from the collecting bank and not reached the drawee bank within six months and there was an issue raised is "Bank" mentioned in Section 138 of Negotiable Instruments Act, whether t is a collection bank or drawee bank. In this citation, it was held that the cheque has been reached the drawee bank within six months from the date of issuance of cheque. In the present case, limitation is not the point to be decided. In such circumstances, I am of the view that the above citation is not applicable to the facts of the present case.

(c) (SH.Ramaswamy S.Iyengar v. The State (NCT of Delhi) and another) in that, it was held that the place of location of collecting bank through which cheque was sent to some other branch jurisdiction would not confer jurisdiction on the courts having territorial jurisdiction over that place. The question of territorial jurisdiction of a Court to try an offence under Section 138 of Negotiable Instruments Act came up for the consideration of the Supreme Court in M/S.Harman Electronics (P) Ltd. and another v. M/S.National Panasonic India Ltd., reported in (AIR 2009 SC 1168), the Hon'ble Supreme Court has once again held that the place where from notice was issued would not by itself give rise to cause of action for prosecution for the dishonour of the cheque under Section 138 of the Negotiable Instruments Act. In this citation, it also mentioned that in (Trilux Technologies Singapore P. Ltd. and others v. Boon Technologies) reported in (2005) 123 Comp. Cases 551 (Mad), it was held that though the cheque was drawn in respect of an account maintained by the drawer at a bank in Singapore, since the amount was payable at the place of the complainant that was at Chennai, the complaint preferred in Chennai was maintainable. But, all the above citations are not applicable to the case of the present case.

11. Now it is appropriate to consider the decision relied upon by the learned counsel for the respondent (M/S.Harman Electronics (P) Ltd. and another v. M/S.National Panasonic India Ltd.), which equals to (2009 (1) SCC 720), in paragrpah-9, it was held that this Court opined that the offence under Section 138 of the Negotiable Instruments Act can be completed only with the concatenation of a number of acts, namely, (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. It was opined that if five different acts were done in five different localities, any one of the courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Section 138 of the Act and the complainant would be at liberty to file a complaint petition at any of those places. In this citation, "it was held that the complaint petition does not show that the cheque was presented at Delhi. It is absolutely silent in that regard. It was held that the notice alone has been issued from Delhi. So it was held that Delhi High Court has no jurisdiction.

12. Further, the learned counsel for the petitioner relied upon the decision of this Court (P.Saravanakumar v. Jai Sakthi Knit Embroidaries, rep. by its Proprietor M.Murugesan, Tirupur), in that, it was stated that the decision reported in (2009) 1 SCC 720 has been followed. Since notice alone has been issued, issuance of notice alone has not been conferred any territorial jurisdiction for entertaining the complaint. It is well settled dictum of the apex Court that issuance of notice will not conferred jurisdiction. Hence, I am agreed with the argument advanced by the learned counsel for the petitioner in this aspect.

13. But, here, not only notice has been issued from Chennai, the cheques were also presented at Chennai. As per the dictum of the apex Court reported in (1999) 7 SCC 510 (K.Bhaskaran v. Sankaran V.Balan and another), I am of the view that since the cheques were presented for collection at Chennai, XXIII Metropolitan Magistrate's Court, Chennai has territorial jurisdiction to entertain the complaint. In such circumstances, I am of the view that mere issuance of notice will not confer any territorial jurisdiction to entertain the complaint under Section 138 of Negotiable Instruments Act. But, the presentation of cheque to the Bank is having territorial jurisdiction to entertain the complaint under Section 138 of Negotiable Instruments Act. Hence I am of the view that XXIII Metropolitan Magistrate's Court is having jurisdiction to entertain the complaint."

(x) A.S.Malan v. S.Venkatesan, [2012] 3 MLJ(Cri) 304, Madras High Court:

"2. The only ground urged by the learned counsel for the petitioner in this petition is that the learned Judicial Magistrate lacks territorial jurisdiction to entertain the complaint. According to him the petitioner herein is the resident of Chennai and the cheque was also issued at Chennai drawn on IC1CI Bank, Chennai. Simply because the respondent is the resident of Thiruthuraipoondi and the cheque was presented for collection there the learned Judicial Magistrate shall not have jurisdiction, it is contended. In this regard, the learned counsel relied on the judgment of this Court in Mohammed Haneef v. Shankarraj (2011) 4 MLJ (Crl) 66.

3. A perusal of the above judgment would go to show that if the complainant resides at a particular place and the cheque was presented in that place for collection and notice was issued there, then the Court having jurisdiction at that place shall have jurisdiction to entertain the complaint. In this case, allegation made in the complaint is crystal clear and the respondent/complainant is the permanent resident at Thiruthuraipoondi. The cheque was presented for collection at Thiruthuraipoondi and notice was also issued from Thiruthuraipoondi. Thus, the lower Court has got jurisdiction to entertain the complaint. In view of the above, the only contention raised by the petitioner is rejected."

8. We have heard the learned counsel for the parties and also gone through the legal positions as well as the authorities relied upon.

9. Before entering upon discussion, we will reproduce relevant sections of the Criminal Procedure Code. The said Sections read as follows :

"190. Cognizance of offences by Magistrates.- (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence-

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try."

"192. Making over of cases to Magistrates.- (1) Any Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to any competent Magistrate subordinate to him.

(2) Any Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to such other competent Magistrate as the Chief Judicial Magistrate may, by general or special order, specify, and thereupon such Magistrate may hold the inquiry or trial."

"200. Examination of complainant.- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:

Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-

(a) if a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint; or

(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192:

Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them."

"201. Procedure by Magistrate not competent to take cognizance of the case.- If the complaint is made to a Magistrate who is not competent

(a) if the complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect;

(b) if the complaint is not in writing, direct the complainant to the proper Court."

"202. Postponement of issue of process.- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, 1[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 that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant."

"322. Procedure in cases which Magistrate cannot dispose of.-(1) If, in the course of any inquiry into an offence or a trial before a Magistrate in any district, the evidence appears to him to warrant a presumption-

(a) that he has no jurisdiction to try the case or commit it for trial, or

(b) that the case is one which should be tried or committed for trial by some other Magistrate in the district, or

(c) that the case should be tried by the Chief Judicial Magistrate,

he shall stay the proceedings and submit the case, with a brief report explaining its nature, to the Chief Judicial Magistrate or to such other Magistrate, having jurisdiction, as the Chief Judicial Magistrate directs.

(2) The Magistrate to whom the case is submitted may, if so empowered, either try the case himself, or refer it to any Magistrate subordinate to him having jurisdiction, or commit the accused for trial."

"460. Irregularities which do not vitiate proceedings.- If any Magistrate not empowered by law to do any of the following things, namely:-

(a) to issue a search warrant under Section 94;

(b) to order, under Section 155, the police to investigate an offence;

(c) to hold an inquest under Section 176;

(d) to issue process under Section 187, for the apprehension of a person within his local jurisdiction who has committed an offence outside the limits of such jurisdiction;

(e) to take cognizance of an offence under clause (a) or clause (b) of sub-section (1) of Section 190;

(f) to make over a case under sub-section (2) of Section 192;

(g) to tender a pardon under Section 306;

(h) to recall a case and try it himself under Section 410; or

(i) to sell property under Section 458 or Section 459, erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered."

10. Learned Amicus Curiae and learned senior counsel for the respondent have sought to impress upon us that in a case where a Magistrate, after taking cognizance, finds that he has no territorial jurisdiction to try the case, he can, acting under Section 322 Cr.P.C. directly forward the case records to the Chief Judicial Magistrate having jurisdiction even if such Chief Judicial Magistrate be functioning outside the State.

11. We are unable to accept such submissions for two reasons:

(1) Article 226 of the Constitution of India empowers every High Court to issue directions through out the territories in relation to which it exercises jurisdiction and Article 227 of the Constitution of India informs that the High Court shall have superintendence over all Courts and Tribunals through out the territories in relation to which it exercise its jurisdiction.

Power of transfer conferred on the High Court under Section 407 Cr.P.C. is restricted only to the territories in relation to which it exercise jurisdiction. The power of transfer interstate is reserved to the Honourable Supreme Court under Section 406 Cr.P.C. If we are to hold that a Magistrate can transfer a case before him outside the State, we would be violating Section 406 Cr.P.C. Therefore, should the transferee Court in a State other than that wherein the High Court exercise its powers choose not to follow the dictate, even of the High Court, in effecting transfer in the manner suggested, there is little that a High Court can do. Need we state the position should transfer effected by a Judicial Magistrate to a different State be not acted upon?

12. It is useful to extract the observations of the Law Commission in its 41st Report:

"24.73. As it is possible that a Magistrate inquiring into or trying an offence may find that some other Magistrate should deal with the case, a provision is made in Section 346 enabling the Magistrate to report the case to his superior, who can then deal with it himself, or transfer it to some other competent Magistrate. Want of jurisdiction is not mentioned in the section as a reason for presuming that "the case should be heard by another Magistrate", and some doubt has, on occasions, been expressed (see AIR 1959 Ker 53) whether "lack of jurisdiction" is covered by S.346. We think it is, and we propose to make this clear by suitable change in the language.

There may be cases which a subordinate Magistrate cannot dispose of, but which the Chief Judicial Magistrate can i.e., a case relating to an offence punishable with imprisonment for a term that may extend to 7 years. There is at present, no provision empowering a subordinate Magistrate to refer such cases to the Chief Judicial Magistrate before or during trial. Such a provision would obviously be useful from the point of view of reducing the work of Sessions Courts. Section 346 is a provision for transfer of proceedings concerned with offences, i.e. inquiry into and trial of offences. We propose to make it clear that it is so limited, by adding the words "into an offence" after the word "inquiry". (underlining supplied)

13. Section 322 Cr.P.C corresponds to Section 346 of the 1898 Code of Criminal Procedure with some modifications. Section 346 of the old code read as follows:

"346.Procedure of a State Magistrate in cases he cannot dispose of: -If in the course of an inquiry or a trial before a Magistrate in any District outside a presidency town, the evidence appears to him to warrant a presumption that the case is one which should be tried or committed for trial by some other Magistrate in such District, he shall stay the proceedings and submit the case with a brief report explaining its nature, to any Magistrate to whom he is subordinate or to such other Magistrate having jurisdiction, as the District Magistrate directs."

Section 322 Cr.P.C. reads as follows:

"322. Procedure in cases which Magistrate cannot dispose of. - (1) If, in the course of any inquiry into an offence or a trial before a Magistrate in any district, the evidence appears to him to warrant a presumption,-

(a) that he has no jurisdiction to try the case or commit it for trial, or

(b) that the case is one which should be tried or committed for trial by some other Magistrate in the district, or

(c) that the case should be tried by the Chief Judicial Magistrate,

he shall stay the proceedings and submit the case, with a brief report explaining its nature, to the Chief Judicial Magistrate or to such other Magistrate, having jurisdiction, as the Chief Judicial Magistrate directs.

(2) The Magistrate to whom the case is submitted may, if so empowered, either try the case himself, or refer it to any Magistrate subordinate to him having jurisdiction, or commit the accused for trial."

14. Material changes introduced are :

(1)It has been made clear by the addition of the words "into an offence" that the provisions contained in the section are for transfer of proceedings concerned with offences, i.e., inquiry into and trial of offences.

(2)Doubt as to whether lack of jurisdiction is also covered by the section has been removed by addition of cl.(a).

(3)The provision has also been made empowering a subordinate Magistrate to refer such cases to the Chief Judicial Magistrate which the Magistrate cannot dispose of but the Chief Judicial Magistrate can, e.g., offences punishable with imprisonment for a term extending to 7 years [cl (c)].

(4)The scope of the section has been extended to metropolitan areas by omission of the words "outside presidency-towns".

15. It is to be noticed that transfer by a Magistrate to a Magistrate without instructions of the Chief Judicial Magistrate or a Chief Judicial Magistrate outside the District is not envisaged in the Section.

16. The words "any Magistrate to whom he is subordinate" have been substituted by the words "the Chief Judicial Magistrate". There need be no doubt that the words "the Chief Judicial Magistrate" would mean only the Chief Judicial Magistrate to whom the Magistrate is subordinate as the 41st report of the Law Commission takes note of the fact that the purpose of Section 346 of the old Code is to enable the Magistrate to report the case to his superior.

17. We may safely presume that if the legislative intent was to widen the scope of Section 322 Cr.P.C. to include the submission of a report by a Magistrate to a Chief Judicial Magistrate to whom he is not subordinate, the same expressly would have been stated.

18. Though as many as five questions stand raised by the learned Single Judge, the answer to all of them can be found upon an answer rendered in respect of the first question raised. As held by the Honourable Supreme Court in Badshah vs. Sou Urmila Badshah Godse, the Court as the interpreter of law is supposed to supply omissions, correct uncertainties, and harmonize results with justice through a method of free decision - "libre recherche sceintifique" i.e. "free scientific research". Finding no specific provision in the Code which directly would answer the question raised, we, out of sheer necessity would have to supply a causus omissus. In doing so, we would state as follows:

(1)the issue raised hardly would arise in cases involving offences under Indian Penal Code, the answers there regards which easily can be found in Chapter XIII Cr.P.C. dealing with jurisdiction of criminal Courts in inquiries and trials. The issue raised most often would arise only in respect of 'complaint cases'. The distinction between initiation of proceedings under Chapter XIV Cr.P.C., manner of dealing with complaints under Chapter XV Cr.P.C and the commencement of proceedings before Magistrate under Chapter XVI Cr.P.C. are to be borne in mind. As stated by the Apex Court in Trisuns Chemical Industry v. Rajesh Agarwal [1999 (8) SCC 686] : [1999 ALL MR (Cri) 1916 (S.C.)]. Paragraph Nos.11 to 14 of such judgment are extracted here under:

"11. It is an erroneous view that the Magistrate taking cognizance of an offence must necessarily have territorial jurisdiction to try the case as well. Chapter XIII of the Code relates to jurisdiction of the criminal courts "in enquiries and trials". That chapter contains provisions regarding the place where the enquiry and trial are to take place. Section 177 says that:

"177. Every offence shall ordinarily be enquired into and tried by a court within whose local jurisdiction it was committed."

But Section 179 says that when an act is an offence by reason of anything which has been done and of a consequence which has ensued, the place of enquiry and trial can as well be in a court "within whose local jurisdiction such thing has been done or such consequence has ensued". It cannot be overlooked that the said provisions do not trammel the powers of any court to take cognizance of the offence. The power of the court to take cognizance of the offence is laid in Section 190 of the Code. Sub-sections (1) and (2) read thus:

"190. (1) Subject to the provisions of this chapter, any Magistrate of the First Class, and any Magistrate of the Second Class specially empowered in this behalf under sub-section (2), may take cognizance of any offence-

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the Second Class to take cognizance under sub-section (1) of such offences as are within his competence to enquire into or try."

12. Section 193 imposes a restriction on the Court of Session to take cognizance of any offence as a court of original jurisdiction. But "any" Magistrate of the First Class has the power to take cognizance of any offence, no matter that the offence was committed within his jurisdiction or not.

13. The only restriction contained in Section 190 is that the power to take cognizance is "subject to the provisions of this chapter". There are 9 sections in Chapter XIV most of which contain one or other restriction imposed on the power of a First Class Magistrate in taking cognizance of an offence. But none of them incorporates any curtailment on such powers in relation to territorial barrier. In the corresponding provision in the old Code of Criminal Procedure (1898) the commencing words were like these: "Except as hereinafter provided.." Those words are now replaced by "Subject to the provisions of this chapter.." Therefore, when there is nothing in Chapter XIV of the Code to impair the power of a Judicial Magistrate of the First Class taking cognizance of the offence on the strength of any territorial reason it is impermissible to deprive such a Magistrate of the power to take cognizance of an offence - of course, in certain special enactments special provisions are incorporated for restricting the power of taking cognizance of offences falling under such acts. But such provisions are protected by non obstante clauses. Anyway that is a different matter.

14. The jurisdictional aspect becomes relevant only when the question of enquiry or trial arises. It is therefore a fallacious thinking that only a Magistrate having jurisdiction to try the case has the power to take cognizance of the offence. If he is a Magistrate of the First Class his power to take cognizance of the offence is not impaired by territorial restrictions. After taking cognizance he may have to decide as to the court which has jurisdiction to enquire into or try the offence and that situation would reach only during the postcognizance stage and not earlier."

19. The next useful reference would be to the judgment in Chief Enforcement Officer v. Videocon International Ltd. [2008 (2) SCC 492] : [2008 ALL SCR 517] and paragraph Nos.19 to 24 of such judgment are extracted here under:

"19. The expression "cognizance" has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means "become aware of" and when used with reference to a court or a Judge, it connotes "to take notice of judicially". It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone.

20. "Taking cognizance" does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance.

21. Chapter XIV (Sections 190-199) of the Code deals with "Conditions requisite for initiation of proceedings". Section 190 empowers a Magistrate to take cognizance of an offence in certain circumstances. Sub-section (1) thereof is material and may be quoted in extenso:

"190. Cognizance of offences by Magistrates.-(1) Subject to the provisions of this Chapter, any Magistrate of the First Class, and any Magistrate of the Second Class specially empowered in this behalf under sub-section (2), may take cognizance of any offence-

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed."

22. Chapter XV (Sections 200-203) relates to "Complaints to Magistrates" and covers cases before actual commencement of proceedings in a court or before a Magistrate. Section 200 of the Code requires a Magistrate taking cognizance of an offence to examine the complainant and his witnesses on oath. Section 202, however, enacts that a Magistrate is not bound to issue process against the accused as a matter of course. It enables him before the issue of process either to 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 there is sufficient ground for proceeding further. The underlying object of the inquiry under Section 202 is to ascertain whether there is prima facie case against the accused. It thus allows a Magistrate to form an opinion whether the process should or should not be issued. The scope of inquiry under Section 202 is, no doubt, extremely limited. At that stage, what a Magistrate is called upon to see is whether there is sufficient ground for proceeding with the matter and not whether there is sufficient ground for conviction of accused.

23. Then comes Chapter XVI (Commencement of proceedings before Magistrates). This Chapter will apply only after cognizance of an offence has been taken by a Magistrate under Chapter XIV. Section 204, whereunder process can be issued, is another material provision which reads as under:

"204. Issue of process.-(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be-

(a) a summons case, he shall issue his summons for the attendance of the accused, or

(b) a warrant case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.

(2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.

(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint.

(4) When by any law for the time being in force any processfees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.

(5) Nothing in this section shall be deemed to affect the provisions of Section 87."

24. From the above scheme of the Code, in our judgment, it is clear that "Initiation of proceedings", dealt with in Chapter XIV, is different from "Commencement of proceedings" covered by Chapter XVI. For commencement of proceedings, there must be initiation of proceedings. In other words, initiation of proceedings must precede commencement of proceedings. Without initiation of proceedings under Chapter XIV, there cannot be commencement of proceedings before a Magistrate under Chapter XVI. The High Court, in our considered view, was not right in equating initiation of proceedings under Chapter XIV with commencement of proceedings under Chapter XVI."

(2)The procedure of returning the complaint along with annexures to the complainant for the purpose of presenting before the proper Court is not altogether foreign. In fact, the Supreme Court has ordered so in certain cases. For eg. See Y. Abraham Ajith v. Inspector of Police, (2004) 8 SCC 100 : [2004 ALL MR (Cri) 3400 (S.C.)].

20. We do not subscribe to the view that as the complaint and annexures are Court property, the same can at no instance be returned to the complainant. It would be more in keeping with the provisions of Section 451 Cr.P.C. to direct return of the complaint along with annexures as also record of proceedings under Section 202 Cr.P.C. Section 451 Cr.P.C. reads as follows:

"451.Order for custody and disposal of property pending trial in certain cases. -When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.

Explanation.- For the purposes of this section, "property" includes -

(a) property of any kind or document which is produced before the Court or which is in its custody.

(b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence."

21. In the case presently envisaged, the interim custody to a party would be for the purpose of proceeding further before an appropriate Court. Explanation to the Section informs property would also include documents. The reason why we stop with record of proceedings under Section 202 Cr.P.C. is because the various decisions touching upon Section 322(2) Cr.P.C. inform that the Magistrate to whom a case is submitted under Section 322(1) Cr.P.C. cannot act on the evidence recorded by the submitting Magistrate, but must, if he tries the case try it de novo (Manikonda Satyanarayana vs. State [AIR 1955 Andhra 44]; Panna Lal and others vs. State [AIR 1952 All 657]; and Sashti Gopal Samui and another vs. Haridas Bagdi [AIR 1938 Cal 415]). Even the accused has no power to waive his right to a trial de novo (Ambika Singh and others vs. Emperor [AIR 1918 Pat 676]; Emperor vs. Gokal [(1904) 1 Cri LJ 1056]; and Muhammad and another vs. Emperor [1905 (2) Cri LJ 369]).

22. No answer to issue No.6 is necessary since it has now been stated by the Apex Court in its decisions in Escorts Limited vs. Rama Mukherjee [2013 (4) MLJ (Crl) 50 (SC)] : [2013 ALL MR (Cri) 4060 (S.C.)] and Nishant Aggarwal vs. Kailash Kumar Sharma [2013 SAR (Crl) 796] : [2013 ALL SCR 2531] that presentation of a cheque also gives rise to cause of action and consequentially the Magistrate within whose jurisdiction such cause of action arises would be entitled to entertain the complaint.

23. Thus, it is clear, that, if the five different acts were done in five different localities, any one of the Courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Section 138 of the Act. To put it differently, the complainant can choose any one of those Courts having jurisdiction over any one of the local areas within the territorial limits of which any one of those five acts was done. As the amplitude stands so widened and so expansive, it is a futile exercise to raise jurisdictional question regarding the offence under Section 138 of the Act.

24. In K. Bhaskaran's case, [1999(4) ALL MR 452 (S.C.) : 1999 ALL MR (Cri) 1845 (S.C.)] cited supra, the Supreme Court has clarified the place in the context of territorial jurisdiction as per the fifth component, namely, failure of the drawer to make payment within 15 days of the receipt, as the place where the drawer resides or the place where the payee resides. We are also to add that Section 178 of the Code has widened the scope of jurisdiction of a criminal court and Section 179 of the Code has stretched it to still a wider horizon. In view of the same and in the light of the law laid down by the Supreme Court in the case of K. Bhaskaran, referred to above, which is reiterated by the Apex Court in a recent decision in the case of Nishant Aggarwal, relied upon by the learned Senior Counsel for the respondent, we are of the firm view that the presentation of a cheque in a bank where the complainant maintains the account would confer jurisdiction to the Magistrate within whose jurisdiction the bank is situated, to take cognizance of the case under Section 138 of the Negotiable Instruments Act.

25. In the light of our above findings, pending the provision of a procedure by the legislature, we would direct that the following course be adopted:

Upon finding that the case is one not triable within his jurisdiction or within the jurisdiction of the Chief Judicial Magistrate to whom he is subordinate, a Magistrate shall,

(i) cause certified copies of the complaint, annexures as also record of proceeding, if any, under Section 202 Cr.P.C;

(ii)the originals of the complaint and annexures filed therewith as also a certified copy of record of proceedings under Section 202 Cr.P.C., if any, shall be handed over to the complainant towards presentation before the appropriate Court. As the cognizance which stands taken is not bad in law, there would be no need for the complainant to seek the aid of Section 14 of the Limitation Act or, Section 417 Cr.P.C. or, for that matter, in cases under Negotiable Instruments Act under Section 142 of such Act. Such position, in itself, makes requisite imposition of a reasonable time frame for presentation of the papers before the appropriate Court. We would direct that Magistrates may, for such purpose, afford a period of not less than one month but not exceeding three months;

(iii)in effecting return, the Magistrate shall issue a certified copy of record of proceedings before his Court in the case;

(iv)the Magistrate shall hold the certified copies of complaint, annexures as also all connected other original records. A returned case number shall be allotted in seriatim to each case;

(v)it shall be the duty of the Magistrate to issue certified copies of the records held by it upon due application therefor by the concerned parties;

(vi)a separate register under the nomenclature 'Complaints Returned Register' shall be maintained by Magistrates. Therein, provision is to be made towards informing the following:

a) date of presentation of complaint;

b) date of taking on file;

c) date of issue of process, if any, to the accused;

d) record of proceedings in the case;

e) date of return of the complaint; and

f) reason for return.

(vii)rules of practice for destruction of records shall duly be followed.

26. References are answered accordingly.

27. Though Order 1 Rule 7 of the Madras High Court Appellate Side Rules says that when a question of law is referred to a Full Bench, the full Bench may answer the reference or in its discretion may finally decide the case itself, we are inclined to answer the reference alone and not to exercise the discretion to finally decide the case, as deciding the case finally during a reference is taken exception to by the Supreme Court in a catena of decisions.

28. Before winding up, we place on record our appreciation for the services rendered by Amicus Curiae, in answering the reference.

29. Registry is directed to post the Criminal O.P. before the single Judge for final disposal.

References answered accordingly.