High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :: 23-11-2007CORAMTHE HONOURABLE MR.JUSTICE S.PALANIVELUCRIMINAL ORIGINAL PETITION No.27470 OF 20071.R.Kumar2.K.Kanchana Devi...Petitioners-vs-G.Rajagopal...RespondentPetition under Section 482 of the Code of Criminal ProcedureFor petitioners : Dr.G.KrishnamurthyFor respondent : Mr.P.V.SanjeeviO R D E RThis petition has been filed, praying to call for the records inC.C.No.11910 of 2007 on the file of III Metropolitan Magistrate, GeorgeTown, Chennai, and to quash the same.2. Petitioners are the accused in the Calendar Case, which is takenon file, on a private complaint lodged by the respondent/complainant,alleging that the petitioners are liable for prosecution under Sections384,406,420,422,423,424,448,477A and 506 IPC.3. The case of the respondent is that he applied for a housing loanwith HDFC Bank and was offered a sum of Rs.9.00 lakhs, which was limitedto Rs.8.50 lakhs, and the said amount was received by him in instalments,by mortgaging his property, sprawling to an extent of 1965 sq.ft.,comprised in Survey No.758/2, Madambakkam Village, Tambaram Taluk,Kancheepuram District. It is his further case that the first petitionerapproached him, representing that he was a builder, engaged in theconstruction of houses/buildings to various persons; on that score, at thefirst instance, the respondent paid a sum of Rs.3.00 lakhs to the firstpetitioner, for which the latter agreed to construct a house, but hedelayed to construct the house for the respondent; subsequently, the firstpetitioner fraudulently persuaded the respondent to agree for dischargingof loan by him on behalf of the respondent in instalments; so saying, thefirst petitioner obtained General Power of Attorney on 11.06.2005 from therespondent, with an authorisation to move the HDFC Bank, for furthercourse of business; on the strength of the said Power of Attorney deed, https://hcservices.ecourts.gov.in/hcservices/ the first petitioner executed a sale deed in favour of his wife, namely,second petitioner, with respect to the house which he constructed in therespondent's land; the first petitioner also obtained an undated chequefor a sum of Rs.3.00 lakhs from the respondent and, added to the above,from the very inception of the nexus with the first petitioner, therespondent was totally deceived and cheated, with a mala fide and criminalintention, to cause huge loss and that the first petitioner fraudulentlyobtained all the documents, which were entrusted to HDFC Bank, towardsloan.4. The core of contention of the learned counsel for the petitionersis that the III Metropolitan Magistrate, George Town, Chennai, has noterritorial jurisdiction over the matter and the allegations in thecomplaint have been made on mere surmises and conjectures and that on anapprehension of a complaint under Section 138 of The NegotiableInstruments Act, the respondent has hastened to file a false privatecomplaint, which is non est in the eye of law.5. Per contra, learned counsel for the respondent would submit thatas far as the contention with regard to criminal liability of thepetitioners/accused is concerned, the Court has to see, whether thecomplaint prima facie makes out any cognizable offence against thepetitioners and while the said exercise is undertaken, the Court is notexpected to go deep into the matter and discuss the genuineness of theallegations found therein and that even at the time of framing ofcharges, the Court is not expected to probe the case with reference to themerits of the case and also as to whether the offence could be proved bythe prosecution.6. In support of the said submission, learned counsel for therespondent garnered support from a Full Bench decision of the SupremeCourt in State of Maharashtra and others v. Som Nath Thapa and others,1996 Supreme Court Cases (Cri) 820, wherein it was observed as under :"So if on the basis of materials on record, acourt could come to the conclusion that commissionof the offence is a probable consequence, a case forframing of charge exists. To put it differently, ifthe court were to think that the accused might havecommitted the offence it can frame the charge,though for conviction the conclusion is required tobe that the accused has committed the offence. Itis apparent that at the stage of framing of acharge, probative value of the materials on recordcannot be gone into; the materials brought on recordby the prosecution has to be accepted as true atthat stage."7. Following the dictum laid down in the above said decision, it mustbe held that the Court, while taking cognizance of an offence or at thetime of framing charges, need not take pains to foresee the consequencesof the matter, but the materials of prosecution to show the prima faciecase alone. https://hcservices.ecourts.gov.in/hcservices/

8. As far as the averments contained in the present complaint areconcerned, they prima facie show the making out of a cognizable offenceagainst the petitioners. Hence, on that score, the question of quashingthe complaint does not arise.9. The next limb of contention of the learned counsel for thepetitioners is, with reference to the territorial jurisdiction of the IIIMetropolitan Magistrate Court, Chennai. In this context, the learnedcounsel would submit that no cause of action has arisen within theterritorial jurisdiction of the said Court and the said Court hasoverstepped its powers to accept a complaint, which could not at all bemaintained before it and taking cognizance of the matter on the basis of abasically illegal complaint would be a classical instance of injustice.10. Repelling the said contention, learned counsel for the respondentwould submit that even assuming that the matter in question does not fallwithin the territorial jurisdiction, the Magistrate has got power to takecongnizance of the same.11. I find substance in the said submission of the learned counselfor the respondent, in view of a decision of the Supreme Court. Theprinciple with regard to this legal proposition is contained in TrisunsChemical Industry v. Rajesh Agarwal and others, 1999 CRI.L.J.4325, in thefollowing terms :"It cannot be overlooked that the saidprovisions do not trammel the powers of any Courtto take cognizance of the offence. S.193 imposes arestriction on the Court of Session to takecognizance of any offence as a Court of originaljurisdiction. But, "any" Magistrate of the FirstClass has the power to take cognizance of anyoffence, no matter that the offence was committedwithin his jurisdiction or not. The onlyrestriction contained in S.190 is that the power totake cognizance is "subject to the provisions ofthis Chapter". There are 9 Sections in Chap.XIVmost of which contain one or other restrictionimposed on the power of a First Class Magistrate intaking cognizance of an offence. But none of themincorporates any curtailment on such powers inrelation to territorial barrier. Thejurisdictional aspect becomes relevant only whenthe question of enquiry or trial arises. It istherefore a fallacious thinking that only aMagistrate having jurisdiction to try the case hasthe power to take cognizance of the offence. If heis a Magistrate of the First Class, his power totake cognizance is not impaired by territorialrestrictions. After taking cognizance, he may haveto decide as to the Court which has jurisdiction toenquire into or try the offence and that situation https://hcservices.ecourts.gov.in/hcservices/ would reach only during the post cognizance stageand not earlier."12. Guided by the ratio laid down in the decision aforementioned, itmust be observed that even if the III Metropolitan Magistrate, Chennai,could not exercise territorial jurisdiction over the matter, the law doesnot prevent him from taking cognizance of the matter. If he finds that hedoes not have territorial jurisdiction, he may act thereon, in accordancewith law, on a subsequent occasion. To put it in other words, aftertaking cognizance of the matter also, during the subsequent proceedings ofthe case, he may decide the issue with regard to territorial jurisdictionand, on that ground, there would be no quashment of the complaint.13. In the light of the well settled legal principles, there could beno quashment of the proceedings in C.C.No.11910 of 2007 on the file of IIIMetropolitan Magistrate, George Town, Chennai. The petitioners mayproject their legal contentions before the trial Court and get the remedy.14. Criminal Original Petition is dismissed. Consequently, theconnected Criminal M.P.Nos.1 and 2 of 2007 are also dismissed.sd/-Asst.Registrar/true copy/Sub Asst.RegistrardixitTo1. The III Metropolitan Magistrate, George Town, Chennai2. -Do-Thro The Chief Metropolitan Magistrate, Egmore, Chennai.+1 cc to MR. P.V. Sanjeev, Advocate, SR.69564.KLT(CO)RP 5/12/2007. CRL.O.P.No.27470 OF 2007