Jammu & Kashmir High Court – Srinagar Bench
M/S Gulberg Cold Chain vs Mohammad Shafi Wani on 13 May, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
Sr. No.2
Regular List
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
TrP (Crl) No.5/2025
M/S GULBERG COLD CHAIN ... PETITIONER(S)
Through: - Mr. N. A. Tabassum, Advocate.
Vs.
MOHAMMAD SHAFI WANI ...RESPONDENT(S)
Through: - None.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
ORDER(ORAL)
13.05.2025
1) The petitioner through the medium of present petition has sought
transfer of the complaint filed by him against the respondent from the Court
of Judicial Magistrate 1st Class (City Judge), Srinagar (hereinafter referred
to as “the trial court”), to any other court of competent jurisdiction of the
District Pulwama or in the alternative to direct the trial court to proceed
ahead and conclude the trial in accordance with law.
2) Heard and considered.
3) It appears that the petitioner has filed a complaint under Section 138
of the Negotiable Instruments Act against the respondent before the trial
court, in which the trial is going on. According to the petitioner, seven
number of cheques, which are the subject matter of the complaint, were
presented by him for encashment by depositing the same into his CC
Account maintained with J&K Bank LCU, Lassipora, Pulwama, but the
2 TrP (Crl) No.05/2025
same were returned unpaid. It has been contended that on 03.08.2024, when
during trial of the case, statement of the Manager of J&K Bank, Branch
Residency Road, Srinagar, was recorded, it came to the fore that the return
memo in respect of the cheques in question had been issued by the J&K
Bank Branch Lassipora Pulwama, though at the top of the return memo, the
name of the Bank was shown as J&K Bank Residency Road, Srinagar.
4) It has been submitted that the cheques were presented by the
petitioner in the Bank which is located in District Pulwama, as such, trial
of the case has to take place before Magistrate of competent jurisdiction in
District Pulwama. On this ground, it is being contended that the complaint
is required to be transferred to a Magistrate of competent jurisdiction in
District Pulwama so as to avoid any objection with regard to territorial
jurisdiction of trial court. In the alternative, it has been prayed that the trial
court may be directed to proceed in the matter in accordance with law.
5) It is a settled law that a complaint for offence under Section 138 of
Negotiable Instruments Act ,1881 can be inquired into and tried only by
the court within whose local jurisdiction, the cheque is delivered for
collection i.e., the branch of the Bank of the payee or the holder in due
course or if the cheque is presented for payment otherwise through an
account, the location of the branch of the drawee bank where the drawer
maintains the account would be determinative of the territorial jurisdiction.
This is clear from the provisions contained in Section 142 of the Negotiable
Instruments Act and the law laid down by the Supreme Court in the Case
of Bridgestone India Pvt. Ltd. v. Inderpal Singh, (2016) 2 SCC 75
followed by the judgment of the Supreme Court in the case of Sh.
3 TrP (Crl) No.05/2025
Sendhuragro and Oil Industries v. Kotak Mahindra Bank Limited,
2025 Livelaw SC 292.
6) Thus, it is only the Magistrate having territorial jurisdiction over the
area where the branch of the Bank in which the payee maintains the account
wherein the cheque is deposited for its encashment, who is competent to
entertain and try a complaint in respect of dishonour of such cheque. The
petitioner through the medium of present petition desires this court to either
transfer the complaint to the Magistrate having jurisdiction or to confirm
and legalize the proceedings which have taken place before the trial court.
7) Admittedly, the cheques, which are the subject matter of the
complaint were presented for encashment by the petitioner in the Bank
situated at Lassipora, Pulwama, which is beyond the territorial jurisdiction
of learned trial court. Thus the said court does not have jurisdiction to
entertain and try the complaint filed by the petitioner. Section 447 of BNSS
does not vest power with the High Court to transfer a criminal case on the
ground that the court before whom the said case is pending does not have
the jurisdiction to inquire into or try the said case. It is only in cases where
the High Court is of the opinion that a fair and impartial inquiry or trial
cannot be had in the criminal court subordinate to it or that some question
of law of unusual difficulty is likely to arise or the transfer of the case would
tend to general convenience of the parties or witnesses, that the High Court
can order transfer of a case from one criminal court to another criminal
court within its jurisdiction. None of these conditions are fulfilled in the
present case. The lack of jurisdiction by the trial court in entertaining and
4 TrP (Crl) No.05/2025
trying the complaint filed by the petitioner cannot form the basis for
transferring the complaint.
8) So far as the alternative prayer made by the petitioner is concerned,
the same can also not be granted in his favour because a court which lacks
inherent jurisdiction to entertain a case cannot be vested with jurisdiction
by consent of the parties. Merely because the trial of the case has progressed
before the learned trial court cannot form a ground to legalize the
proceedings before the said court. The learned trial court lacks the inherent
jurisdiction to entertain and try the complaint. The said illegality goes to
the root of the case and cannot be set right by this Court in exercise of its
powers under Section 447 or Section 528 of BNSS. The proper course for
the petitioner is to apply to the learned trial court for return of the complaint
with permission to file the same before the Magistrate having jurisdiction.
Of course, the petitioner will have the option of applying for condonation
of delay in filing the complaint after presentation of the complaint before
the Magistrate having jurisdiction.
9) For the foregoing reasons, I do not find any merit in this petition. The
same is dismissed accordingly.
10) A copy of this order be sent to the trial court.
(SANJAY DHAR)
JUDGE
Jammu
13.05.2025
"Bhat Altaf-Secy"
Whether the order is reportable: Yes/No
Mohammad Altaf Bhat
I attest to the accuracy and
authenticity of this document
14.05.2025 21:38
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