High Court of KeralaSingle Judge2022-09-29Dismissed; the revision petition is dismissed; ...

Nishad Mathew v. State of Kerala

Case / Petition Number:CRL.R.P.NO.719 OF 2021

Neutral Citation:/

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. BADHARUDEEN
Judgment Date: 2022-09-29
Court Decision / Holding: This revision petition is dismissed. The High Court held that the transfer to Kalamassery was not necessary and that the CC 154/2015 should be disposed of by the NI Court, Ernakulam. The NI Court Ernakulam is directed to hear and dispose of the matter within three months and, upon production of a copy of the order, to deliver judgment within one month. The order under review (CRL.R.P.No.16/2020) is affirmed to the extent that the Ernakulam NI Court should proceed, and the petitioner’s challenge to the transfer is rejected.
Final Disposition: Dismissed; the revision petition is dismissed; the NI Court Ernakulam to hear and decide CC 154/2015 and deliver judgment within the specified period; transfer to Kalamassery not necessary; proceedings to continue before the Ernakulam NI Court.

Parties to the Case

Appellants / Petitioners

Nishad Mathew

Respondents

State of Kerala represented by Public Prosecutor
MARY JUDIT (complainant) aged 50 years, W/o RAPHEL PETER

Legal Representation & Advocates

Counsels for Petitioners

• SOJAN MICHEAL

Counsels for Respondents

• K.S. Sumeesh
• C.K. Anwar
• T.R. Renjith (Sr. Public Prosecutor)

Case Synopsis & Summary

The Kerala High Court hears a Criminal Revision Petition filed by Nishad Mathew challenging an order of the Additional Sessions Judge-VI, Ernakulam, which directed that the NI Act case, eventually numbered CC No. 154/2015 and tried in the Judicial First Class Magistrate Court (N.I. Act cases), Ernakulam, be heard and decided by a different court. The petitioner contends that the NI Court Ernakulam had no territorial jurisdiction to entertain the complaint because the instrument was presented for collection through an account at Kalamassery, which would ordinarily confer jurisdiction on the Kalamassery JFMC under Section 142 of the Negotiable Instruments Act. The trial before the NI Court Ernakulam had proceeded with the petitioner’s appearance and the evidence, and the case was transferred to Kalamassery on the ground of lack of jurisdiction. The complainant and the State oppose the transfer, arguing the petitioner seeks to delay judgment; they rely on Section 462 Cr.P.C., and invite scrutiny of the earlier order. The High Court analyzes the jurisdictional questions, emphasizes that a party must raise jurisdictional objections early, and holds that, in the absence of inherent lack of jurisdiction and prejudice to justice, trial in the original court may proceed. Ultimately, the court sets aside the transfer not as a new remedy but by restoring Ernakulam’s jurisdiction, and dismisses the revision petition, directing the NI Court Ernakulam to hear and decide CC 154/2015 and deliver judgment within the specified period.

Provisions of Law Cited

Section 397 Cr.P.C.Section 401 Cr.P.C.Section 142 of the Negotiable Instruments ActSection 138 of the NI ActSection 462 Cr.P.C.

Legal Doctrines & Maxims

No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial, or other proceedings in the course of which it was arrived at or passed, took place in a wrong Sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice (Section 462 Cr.P.C.).
Prejudice or failure of justice must accompany a challenge to territorial or jurisdictional errors; where the court has inherent jurisdiction, it may proceed despite procedural irregularities unless prejudice is shown.
Objection to territorial jurisdiction must be raised at the earliest before evidence is adduced; if the court has jurisdiction, it may dispose of the matter even if an irregularity occurred, barring a showing of prejudice.

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner submitted that the NI Court Ernakulam had no territorial jurisdiction to entertain the NI Act complaint. The case, initially filed in the Aluva area and later transferred due to jurisdiction concerns, was argued to be properly heard only by the Kalamassery JFMC under Section 142 NI Act. He contended that the NI Court’s completion of trial, the subsequent transfer, and the Additional Sessions Judge’s direction to have Ernakulam hear and decide (CRL.R.P.16/2020) were improper. The petitioner argued that Section 462 Cr.P.C. provides that an error in the place of trial should not prejudice the accused where jurisdiction exists, and since the NI Court had jurisdiction to try the case, the transfer was unwarranted and caused delay. He contends that the original court should decide the case and that any order transferring the case should be set aside to avoid delay and prejudice.

Contentions of Respondents

The respondents argued that the accused is attempting to delay judgment and would use jurisdictional challenges to this end. They relied on Section 462 Cr.P.C. and cited decisions like Arun Ramachandran Nair v. State of Kerala, State of Karnataka v. Kuppuswamy Gounder, and Abhijit Pawar v. Hemant Madhukar Nimbalkar to justify the transfer and to support the position that jurisdictional issues can be tested in the appropriate forum. The respondents contended that the trial had proceeded with the authority of the concerned court that had subject-mmatter and territorial jurisdiction and posited that the transfer to Kalamassery had a rational basis under the law; they argued for upholding the transfer if it was necessary to secure fair and proper adjudication.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Arun Ramachandran Nair v. State of Kerala and Another	1987(2) SCC 74	Mentioned Only	Cited to discuss Section 462 Cr.P.C. principles; used to illustrate general jurisprudence on territorial jurisdiction and transfer, but not expressly distinguished or overruled.
State of Karnataka v. Kuppuswamy Gounder	/	Mentioned Only	Cited as part of the corpus of cases informing the court’s approach to jurisdiction and transfer; no explicit adoption or distinction noted in the judgment.
Abhijit Pawar v. Hemant Madhukar Nimbalkar and another	2017(3) SCC 528	Mentioned Only	Cited in the context of discussion on approach to jurisdiction and related principles; not distinguished or overruled in the present decision.
2012(1) Crimes 443	/	Mentioned Only	Cited among authorities considered by the Sessions Judge; used to support general procedural principles rather than a direct holding in the present matter.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 29[TH] DAY OF SEPTEMBER 2022 / 7TH ASWINA, 1944** **CRL.REV.PET NO. 719 OF 2021** **AGAINST THE ORDER DATED 08.11.2021 IN CRL.R.P.NO.16/2020 OF ADDITIONAL DISTRICT AND SESSIONS COURT-VI, ERNAKULAM** ## **REVISION PETITIONER/RESPONDENT/ACCUSED :** **NISHAD MATHEW AGED 39 YEARS S/O.K.T.MATHEW (SOORYA APPACHAN), HOTEL SEA GATE, PATHADIPALAM, KALAMASSERY P.O., SOUTH KALAMASSERY, ERNAKULAM. BY ADV SOJAN MICHEAL** ## **RESPONDENT/STATE/REVISION PETITIONER/COMPLAINANT :** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN - 31. 2 MARY JUDIT, AGED 50 YEARS, W/O.RAPHEL PETER, NEDUMPARAMBIL HOUSE, TAIKODAM P.O., VYTTILA, ERNAKULAM, PRESENTLY RESIDING AT NEDUMPARAMBIL (H), JUBILEE ROAD, NAZRETH, ALUVA, PIN - 683 101. BY ADVS. K.S.SUMEESH C.K.ANWAR BY SRI.T.R.RENJITH, SR.PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR** **ADMISSION ON 29.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.R.P.NO.719 OF 2021** -:2:- _”C.R.”_ ## **O R D E R** In this revision petition filed under Sections 397 and 401 of Cr.P.C., the revision petitioner, who is the accused in C.C.No.154 of 2016 on the file of the Judicial First Class Magistrate Court (N.I.Act cases), Ernakulam dated 03.12.2019 is put under challenge. The respondents herein are the State of Kerala as well as the original complainant. 2. Heard the learned counsel for the revision petitioner as well as the respondents. 3. I would like to refer the parties in this case as complainant and accused for easy reference. 4. It is argued by the learned counsel for the accused/revision petitioner that the Judicial First Class Magistrate Court (N.I.Act cases), Ernakulam (hereinafter will be referred as N.I. Court, Ernakulam for convenience) **CRL.R.P.NO.719 OF 2021** -:3:- has no territorial jurisdiction to try the case and when the said contention was raised before the N.I. Court, Ernakulam, the learned Magistrate transferred the case to Judicial First Class Magistrate Court, Kalamassery (hereinafter will be referred as JFMC, Kalamassery for convenience) on the finding that N.I. Court, Ernakulam had no jurisdiction to entertain the complaint. The said finding is perfectly in order and the Additional Sessions Judge, as per order in Crl.R.P.No.16 of 2020 dated 08.11.2021 interfered in the transfer and thereby, directed the N.I. Court, Ernakulam itself to hear and decide the above case. The said order is illegal, is the submission of the learned counsel for the accused/revision petitioner. 5. The learned counsel for the complainant would submit that the accused is attempting to trial the proceedings with a view to delay in pronouncement of judgment in this matter. 6. While considering the rival submissions, it is relevant to refer the history of the case. The complainant is **CRL.R.P.NO.719 OF 2021** -:4:- a lady, who lodged prosecution under Section 142 of the Negotiable Instruments Act, on the allegation that the accused herein committed offence under Section 138 of the N.I. Act before the Judicial First Class Magistrate Court-II, Aluva in the year 2015. Thereafter, the case was transferred to N.I. Court, Ernakulam and re-numbered as C.C.No.154 of 2015. 7. The accused appeared before the N.I. Court, Ernakulam and conceded the jurisdiction and accordingly, N.I. Court, Ernakulam completed trial. 8. It is at this juncture, the learned counsel for the accused raised contention before the NI Court, Ernakulam that the said Court has no territorial jurisdiction to entertain the complaint. The N.I. Court, Ernakulam accepted the contention raised by the accused on the finding that the cheque was presented for collection through the account maintained by the complainant at Union Bank of India, Kalamassery branch and therefore, under Section 142(2) of the Negotiable Instruments Act, the jurisdiction is with the **CRL.R.P.NO.719 OF 2021** -:5:- Judicial First Class Magistrate Court, Kalamassery. 9. In this matter, the trial was completed on 25.06.2019 and thereafter, the learned Magistrate transferred the case on the ground of lack of jurisdiction on 03.12.2019. 10. The complainant assailed the said transfer by filing revision before the Sessions Court, Ernakulam. The learned Sessions Judge, as per order in Crl.R.P.No.16 of 2020 dated 08.11.2021 appraised the contentions insofar as the transfer is concerned adverting to Section 462 of Cr.P.C. and also relying on three decisions viz., [2012(1) Crimes 443], **Arun Ramachandran Nair v. State of Kerala and Another,** [1987(2) SCC 74], **State of Karnataka v.Kuppuswamy Gounder** and [2017(3) SCC 528], **Abhijit Pawar v. Hemant Madhukar Nimbalkar and another.** 11. In this context, it is apposite to refer Section 462 of Cr.P.C. dealing with proceedings in wrong place. The same provides as under: **CRL.R.P.NO.719 OF 2021** -:6:- “No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice.” 12. Reading the decisions referred by the learned Additional Sessions Judge, it is crystal clear that, when there is no inherent lack of jurisdiction, lack of territorial jurisdiction or ground of irregularity of procedure an order or a sentence awarded by a competent court could not be set aside unless a prejudice is pleaded and proved, which would mean failure of justice. It is also the settled position that the objection regarding question of territorial jurisdiction must be raised, at the earliest at any rate, before adducing evidence/examination of witnesses in the Court. In the case on hand, the accused conceded the jurisdiction of the N.I.Court, Ernakulam and accordingly, trial was completed and the accused raised question of territorial **CRL.R.P.NO.719 OF 2021** -:7:- jurisdiction at the fag end. Since the law is settled that, if the Court has otherwise jurisdiction or the Court does not lack inherent jurisdiction, the Court has the power to dispose of the matter wherein, the evidence already recorded, since the question of jurisdiction was not raised before start of trial. 13. In this view of the matter, C.C.No.154 of 2016 of the N.I. Court, Ernakulam shall be disposed of by the said Court and the transfer ordered by the said court to JFCM, Kalamassery is not necessary. 14. In view of the matter, the learned Sessions Judge set aside the order of transfer, with direction to the of the N.I. Court, Ernakulam to hear and dispose of the matter within a period of three months. I find no illegality in the order and therefore, the order impugned herein is liable to be confirmed. In view of the facts discussed, there is no merit in this petition. Accordingly, this revision petition is dismissed, directing the Judicial First Class Magistrate **CRL.R.P.NO.719 OF 2021** -:8:- Court (NI Act), Ernakulam to deliver judgment, after hearing both sides, within a period of one month from the date of receipt or production of a copy of this order. Sd/- **A. BADHARUDEEN JUDGE** rkj **CRL.R.P.NO.719 OF 2021** -:9:- ## **APPENDIX OF CRL.REV.PET 719/2021** **PETITIONER ANNEXURES Annexure I TRUE COPY OF THE COMPLAINT DATED 21/02/2015 IN ST.NO.616/2015 ON THE FILE OF JFCM-II, ALUVA. Annexure II TRUE COPY OF THE ORDER DATED 03/12/2019 IN CC NO.154/2015 OF THE JUDICIAL 1ST CLASS MAGISTRATE COURT (N.I.ACT CASES), ERNAKULAM. Annexure III TRUE COPY OF THE MEMORANDUM OF REVISION FILED BY THE 2ND RESPONDENT DATED 19/02/2020. Annexure IV TRUE COPY OF THE ARGUMENT NOTE DATED 25/10/2021. Annexure V CERTIFIED COPY OF THE ORDER DATED 08/11/2021 IN CRL.R.P.NO.16/2020 OF THE ADDL. DISTRICT AND SESSIONS JUDGE-VI, ERNAKULAM.**