Arun Ramachandran Nair v. State of Kerala and ING Vysya Bank Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE R.BASANT** **&** **THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN** **THURSDAY, THE 9TH JUNE 2011 / 19TH JYAISHTA 1933** **Crl.Rev.Pet.No. 3330 of 2010()** **------------------------------** **CMP.NO.827/2010 IN CC.1357/2007 of JUDICIAL FIRST CLASS MAGISTRATE COURT IV, KOCHI.** **....................** ## **PETITIONER(S): PETITIONER/ACCUSED:** **------------------------------------------------------------** **ARUN RAMACHANDRAN NAIR, ONATTU HOUSE GANDHI NAGAR PO, KOTTAYAM DISTRICT.** **BY ADV. SRI.ALEX.M.SCARIA** ## **RESPONDENT(S): RESPONDENT/COMPLAINANT:** **-------------------------------------------------------------------------** **1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,** **2. ING VYSYA BANK LTD REGIONAL OFFICE, FIRST FLOOR SHEMA BUILDING RAVIPURAM, ERNAKULAM.** **R1 BY PUBLIC PROSECUTOR SRI. T.K.VIPINDAS R2 BY ADV. SMT.SREEKALA KRISHNADAS** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** ## **C.R.** **R.BASANT & K.SURENDRA MOHAN, JJ. ------------------------------------------CRRP No.3330 of 2010 ------------------------------------------Dated this the 9[th] June, 2011** ## **ORDER** ## Basant, J. What does the expression 'trial' mean and signify when that expression was employed by the Division Bench in paragraph-19 of **Thressiamma** v **State of Kerala** (2010(4) KLT 598), where their Lordships held that a dispute regarding territorial jurisdiction of a Magistrate before whom he is prosecuted should be raised by the accused at the earliest - at least before starting 'trial'? 2. This is the point that arises for consideration in this revision petition which has been referred to the Division Bench as per order dated 7.12.2010 of a learned Judge (Justice V.Ramkumar) who felt that the decision if literally construed would lead to difficulties. His Lordship the Chief Justice has directed that the matter be placed before us, conscious of the fact that both judges who rendered the decision are available. We are hence proceeding to consider the matter notwithstanding the fact that we feel that ideally the question could have been Crl.R.P.No.3330/2010 2 considered by the Bench which rendered the decision in **Thressiamma** (supra). 3. A brief reference to facts may be relevant. The revision petitioner is the accused in a prosecution under Section 138 of the Negotiable Instruments Act. Complaint against him was filed before the learned Chief Judicial Magistrate, Ernakulam on 19.10.2006. Cognizance was taken on the same day. The case was transferred to the learned Judicial Magistrate of the First Class (IV) Kochi by the learned Chief Judicial Magistrate. Consequent to the non-appearance of the petitioner/accused before the learned Magistrate, warrant of arrest was issued against him. He appeared before the learned Magistrate on 6.3.2010. To record the plea, the case was adjourned and the plea under Section 251 Cr.P.C. was ultimately recorded on 23.6.2010 and after recording the plea of not guilty, the matter was adjourned to 17.8.2010 for evidence of the complainant. On that day, the accused filed a petition questioning the maintainability of the prosecution before the learned Magistrate. The learned Magistrate lacked territorial jurisdiction, it was contended. That petition was heard and the impugned order was passed on 27.10.2010. The objection was over ruled and it was held that the learned Chief Judicial Magistrate, Ernakulam had Crl.R.P.No.3330/2010 3 the requisite territorial jurisdiction to entertain the complaint. 4. The petitioner/accused claims to be aggrieved by the impugned order. A contention is raised by the complainant/ respondent, that objection to territorial jurisdiction could not be raised after commencement of 'trial'. Relying on the decisions in **Wipro Limited** v **Sasi** (2010(3) KLT 4) by a learned single judge and **Thressiamma** (supra) by a Division Bench, it is contended that the petitioner/accused could not have raised an objection to jurisdiction after particulars of the offence were read over and his plea was recorded under Section 251 Cr.P.C. Trial had started by then and have no objection to territorial jurisdiction could legally be raised thereafter in the light of **Thressiamma** , contends counsel. 5. The learned counsel for the petitioner submits that the expression 'trial' was not used in **Wipro** or **Thressiamma** (supra) in any technical or rigid sense. The expression 'trial' was not used in those precedents to indicate that the rubicon of recording the plea under Section 251 Cr.P.C. should not be crossed before the objection is raised by the accused, contends the learned counsel for the petitioner. 6. The learned counsel contends that if such a narrow and rigid view were to be taken, the accused in a prosecution will Crl.R.P.No.3330/2010 4 virtually be denied his opportunity to raise his objection against territorial jurisdiction. The learned counsel relies on the provisions of Chapter - XX of the Code of Criminal Procedure which prescribes the procedure for 'trial' of summons cases. Summary trial which is the normal rule in prosecutions under Section 138 of the Negotiable Instruments Act must also follow the basic stipulations of Chapter - XX regarding trial of summons cases. 7. As per the scheme of Chapter - XX, as soon as an accused appears before Court, substance of accusation is to be read over to him, his plea is to be recorded and only thereafter further steps will follow. This would mean that unless an accused person raises the objection after his appearance and before the plea is recorded, he will forfeit the right to question the jurisdiction of the Court. That in turn means that he will have no effective opportunity or occasion to raise his objection to jurisdiction. That cannot obviously be the law. That would work out injustice. Many an accused will be compelled to face trial at far off places unjustifiably. Virtually, he will have no time in the interregnum between his appearance and the recording of plea under Section 251 Cr.P.C. to raise his plea compelling him to endure injustice, points out counsel. Crl.R.P.No.3330/2010 5 8. The learned single judge who made the reference also appeared to feel that the expression 'trial' used in **Wipro** and **Thresiamma** (supra) might lead to complications as Magistrates are likely to entertain the impression that the expression 'trial' is used in those two decisions in the ordinary sense. In that view of the matter, the dictum in **Thresiamma** (supra) deserves reconsideration, it is urged. 9. The expression 'trial' is not defined under the Code of Criminal Procedure. Expression 'inquiry' is defined under Section 2(g) of the Code as follows: “inquiry” means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court” This would indicate that 'trial' is different from enquiry. However, the expression 'trial' has not been defined. 10. We have a host of decisions to indicate when technically the 'trial' starts. In a civil case trial starts after issues are framed. A criminal trial starts when the charge is framed and the plea is recorded. What follows such framing of charge/recording of plea is strictly reckoned as the process of criminal trial. There can be no dispute on this proposition. If authority be necessary on that aspect, we can advantageously Crl.R.P.No.3330/2010 6 refer to the decision in **Ratilal Bhanji Mithani** v **State of Maharashtra and others** (AIR 1979 SC 94). 11. It is well settled that the words in a precedent are not to be construed as if they are language of the legislature. The expressions in a precedent must be realistically understood. It has often been said that a precedent is a one way ticket to traverse the journey in the facts of that particular case. A careful appreciation of the question that arose for consideration in **Wipro** and **Thressiamma** (supra) may in this context be necessary. The judges were making use of the expression ' 'trial'' in those decisions, only conditioned by the facts and circumstances of the respective cases. We have no hesitation to agree that the expression 'trial' in the decisions are not to be understood in any technical sense. We extract below the precise portion where the Division Bench has employed the expression 'trial' in paragraph-19. “In the event an accused in a criminal case has got a dispute regarding territorial jurisdiction of a Magistrate before whom he is prosecuted, it should have been raised at the earliest opportunity-at least before starting the 'trial'”. 12. The learned Single Judge also in **Wipro** (supra) after parting with the case felt that certain general directions Crl.R.P.No.3330/2010 7 deserved to be issued. Accordingly as direction No.2, it was ordered “Dispute regarding territorial jurisdiction shall not be entertained once the 'trial' is started”. 13. We find no indication to assume that the expression 'trial' was used in the above precedents to indicate that an objection to territorial jurisdiction cannot be raised after the plea is recorded. There is nothing to indicate that recording of plea must be reckoned as commencement of trial for the purpose of raising an objection to territorial jurisdiction. Such a view would certainly lead to injustice. Such a view does not appear to have been contemplated by the learned judges. 14. A reading of paragraph-19 clearly shows that the learned judges were not really concerned with the question as to what was the precise point of time when the 'trial' would start. The bench had taken note of the decision in **Meenakshi** v **Udayakumar** (2007(4) KLT 620), wherein it was laid down that the objection to territorial jurisdiction has got to be raised at the earliest opportunity. That of course is the settled and entrenched law. 15. It will be advantageous to note that even where a statute employs the expression 'trial', it does not necessarily Crl.R.P.No.3330/2010 8 mean the formal raising of charges or the raising of issues. His Lordship Justice Pius C.Kuriakose, one of the judges who have rendered the decision in **Thressiamma** (supra) had occasion to consider the ambit of the expression 'trial' in the proviso to Order VI Rule 17. The learned judge spoke thus in paragraph 5: “Having regard to the easily discernible intendment of the Legislature behind the reintroduction of O.VI, Rule 17, I have no difficulty to hold that the expression 'trial' has been employed in the proviso to Rule 17 only in what the Supreme Court described as the narrow sense of examination of 'witnesses. .............. Trial, therefore, in the context of O.VI, Rule 17 means the commencement of actual trial or adducal of evidence. In my view, the Legislature wanted to have a check on the grant of the amendment applications after commencement of the trial since the same is likely to cause prejudice to parties who had already adduced evidence and may necessitate recalling of witnesses who have already examined.” 16. It is evident that the learned Judges in **Thresiamma** (supra) had employed the expression 'trial' only to indicate that the objection must be raised at the earliest opportunity. When their Lordships in that context made use of the expression 'trial', what was evidently meant was that objection should not be raised as in **Meenakshi** (supra)when the entire 'trial' was over and the final verdict was rendered. In **Wipro** (supra), the objection was not raised by the accused and the court had Crl.R.P.No.3330/2010 9 suo motu ordered the return of the complaint long after the commencement of proceedings. In **Thresiamma** (supra) also objection was raised after completion of evidence and questioning of the accused under Section 313 Cr.P.C. - only at the stage of arguments. We may again note that the expression 'trial' was not employed in these two cases in any rigid or technical sense. It is well settled that an objection to territorial jurisdiction must be raised at the earliest opportunity. The learned Judges were only insisting that the objection to territorial jurisdiction in a prosecution under Section 138 of the Negotiable Instruments Act must also be raised at the earliest opportunity. When their Lordships employed the expression “at least before starting of the trial”, the evident intendment was that such objection must be raised before actual adducing of evidence has taken place by examination of witnesses in court. 17. We do in these circumstances clarify that the expression 'trial' was not employed by the Division Bench in Paragraph-19 of **Thresiamma** (supra) in any technical or rigid sense. It must be driven home clearly that objection to territorial jurisdiction has to be raised at the earliest opportunity. Whether it has been raised at the earliest Crl.R.P.No.3330/2010 10 opportunity or not is a question to be considered in the facts and circumstances of each case. Ordinarily, it must be raised necessarily before the 'trial' - we mean- before the adducing of evidence by examination of witnesses has commenced. It is unnecessary to prescribe any rubicon after crossing which the objection cannot be raised. Suffice it to say that objection must be raised at the earliest opportunity and whether objection has been raised at the earliest opportunity or not is a question of fact to be decided in the facts of each case. By way of abundant caution, it has certainly to be said that the objection must be raised before the commencement of 'trial' meaning thereby that such objection must be raised before the actual adducing of evidence by examination of witnesses in court. We may hasten to observe that the mere fact that chief affidavit has been filed will not deprive the accused of his right to question the jurisdiction of the court. We say so because we do not want to permit mischievous complainants to file a chief affidavit hurriedly to frustrate the possibility of valid objection to territorial jurisdiction being raised. Similarly it is not the intendment of the learned judges in **Thressiamma** or us in this judgment that the accused can wait for any length of time to raise objection to territorial jurisdiction and the same if raised Crl.R.P.No.3330/2010 11 prior to the recording of plea will have to be entertained invariably. Facts of each case will have to be considered to decide whether objection has been promptly raised. The expression before starting of the 'trial' has been used in **Thressiamma** (supra) only to indicate that objection must be raised at the earliest opportunity and that such objection cannot be permitted to be raised after the actual adducing of evidence in Court has started. We so clarify the decision in **Thressiamma** (supra) **.** We find no reason in these circumstances to doubt the dictum in **Thresiamma** or refer the issue to a larger bench. 18. We come to the facts of this case. This is certainly not a case where the complainant has not averred that the transaction took place at Ernakulam. A reading of paragraph4 of the complaint clearly reveals that the complainant had averred that the cheque was handed over by the accused at Ernakulam. The counsel argues that the precise place where the cheque was handed over has not been averred in the complaint. We do not reckon that to be crucial. That the cheque was handed over at Ernakulam, which is within the jurisdiction of the Chief Judicial Magistrate, Ernakulam, is specifically averred. At any rate, sufficient averments are Crl.R.P.No.3330/2010 12 there to show that the cheque was handed over at Ernakulam. 19. We do not in these circumstances agree with the contention that the learned Chief Judicial Magistrate did not have territorial jurisdiction. Cognizance taken by the learned Chief Judicial Magistrate appears to be absolutely justified. Objection to territorial jurisdiction was raised by the petitioner/accused promptly before trial as understood by us - i.e. before the actual commencement of examination of witnesses in court. There was no undue delay in raising the same. 20. The learned counsel for the petitioner then asserts that the application for loan was made before the Kottayam Branch of the complainant. All transactions were with the Kottayam Branch. There is no specific contra assertion for the complainant that the petitioner/accused had no dealings with the Kottayam branch of the complainant - ING Vysya Bank. The counsel for the petitioner asserts that the petitioner/accused had all transactions with the branch of Kottayam only. The learned counsel for the accused in these circumstances submits that in the interests of justice there may be a direction at least to transfer the case to the Court of Chief Judicial Magistrate, Kottayam. The complainant bank Crl.R.P.No.3330/2010 13 admittedly has a branch there and we are satisfied that such a direction shall eminently secure the interests of justice. 21. We are hence persuaded to accept that request of the learned counsel for the petitioner in the interests of justice. We are satisfied that specific directions for expeditious disposal of the case also deserves to be issued . 22. In the result: a. We concur with the dictum in **Thressiamma** v **State of Kerala** (2010(4) KLT 598) subject to the observations in paragraph- 17 of this judgment. We clarify that the expression trial was used not technically or rigidly, but only to indicate that objection to territorial jurisdiction must be raised at the earliest – at any rate before actual adducing of evidence, ie. examination of witnesses in court. b. This petition is dismissed. c. While dismissing the revision petition, we direct that C.C.No.1357 of 2007 pending before the JFCM-IV, Kochi be transferred to the Court of Chief Judicial Magistrate, Kottayam. The complainant and the accused shall appear before the learned Chief Judicial Magistrate, Kottayam on 15.07.2011. The learned Crl.R.P.No.3330/2010 14 Judicial Magistrate of the First Class -IV, Kochi shall forthwith forward the case records to the learned Chief Judicial Magistrate, Kottayam and ensure that such records reach the learned Chief Judicial Magistrate, Kottayam well before 15.07.2011. The learned Chief Judicial Magistrate, Kottayam shall proceed with the trial from its present stage and shall ensure that the case is finally disposed of within a period of 45 days from 15.07.2011. Compliance shall be reported to this Court. 23. Registry shall communicate this order to both courts forthwith. **sd/- R.BASANT JUDGE** **sd/- K.SURENDRA MOHAN JUDGE** ## **css/** Crl.R.P.No.3330/2010 15 **R.BASANT & K.SURENDRA MOHAN, JJ. ------------------------------------------CRRP No.3330 of 2010 ------------------------------------------Dated this the 15[th] December, 2010** ## **ORDER** ## Basant, J. The counsel for the petitioner has explained to us the nature of the challenge and the reason for reference. But, we find that the respondent/complainant has not been served. 2. Issue notice to the second respondent. The learned counsel for the petitioner is permitted simultaneously to give notice to the counsel for the second respondent who is appearing before the court below Crl.R.P.No.3330/2010 16 or/and the standing counsel, if any, for the second respondent before this Court. 3. Verify service and call again on 4.1.2011. **R.BASANT JUDGE** **K.SURENDRA MOHAN JUDGE** ## **css/**