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2020 (9) TMI 1305
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....ounsel appearing for the de facto complainant, who is the second Respondent herein. 3. The Petitioner herein was appointed on 04.08.2016 as the Group Chief Risk Officer-Executive Director of the second Respondent, which is a non-banking finance company and which happens to be the de facto complainant in the criminal cases whose transfer is what is sought in these petitions. It is relevant to note that the Petitioner, upon his appointment, joined the Delhi Office of the second Respondent-Company on 04.08.2016 and he was transferred to Mumbai on 10.04.2017. The Petitioner resigned in July-2018. 4. Three loans sanctioned by the second Respondent-Company, during the period when the Petitioner was in service, became the subject-matter of three different complaints lodged by the second Respondent-Company. All the three complaints were lodged by the second Respondent with the Station House Officer, Civil Lines, Gurugram P.S. For the purpose of easy appreciation, the particulars of the loan and the borrower, as well as the particulars of the FIR are given in the tabular column as follows: S. No. FIR No. Offences Complained Borrower Date of Sanction Amount of loan ....
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....ner will not get a fair trial. This saves me of the botheration to bring on record the transcript of certain whatsapp messages filed before me as part of the paper book. 11. Mr. Vikas Singh, learned Senior Counsel, took me through the loan agreements under which the second Respondent-Company sanctioned the subject loans and argued that in all the three loan agreements, the place of execution of the agreement, the Branch office of the lender and the address of the borrower are indicated. For instance, the loan agreement dated 26.10.2016 under which facilities were extended to Zillion Infraprojects Private Limited (which forms the subject-matter of FIR No. 452/2018), the place of execution of agreement and the address of the Branch Office of the lender are indicated to be at Delhi. The address of the borrower as well as the Co-borrower are also stated to be in Delhi. The branch of the bank on which the cheque for the loan amount was drawn was also in Delhi. 12. Similarly the loan agreement under which facilities were extended to Hotel M.S. (which forms the subject matter of the third FIR) indicates the place of agreement and Branch Office of the lender to be Indore. The address....
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.... arguments of the learned Senior Counsel for the second Respondent and relied upon the decision of this Court in Asit Bhattacharjee v. Hanuman Prasad Ojha and Ors. 2007 (5) SCC 786. 17. I have carefully considered the rival contentions. 18. As seen from the pleadings and the rival contentions, the Petitioner seeks transfer, primarily on the ground of lack of territorial jurisdiction. While the question of territorial jurisdiction in civil cases, revolves mainly around (i) cause of action; or (ii) location of the subject matter of the suit or (iii) the residence of the Defendant etc., according as the case may be, the question of territorial jurisdiction in criminal Cases revolves around (i) place of commission of the offence or (ii) place where the consequence of an act, both of which constitute an offence, ensues or (iii) place where the Accused was found or (iv) place where the victim was found or (v) place where the property in respect of which the offence was committed, was found or (vi) place where the property forming the subject matter of an offence was required to be returned or accounted for, etc., according as the case may be. 19. While jurisdiction of a civil co....
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....over any of such local areas may inquire into or try such an offence. (3) Where an offence is committed partly in one area and partly in another, it may be inquired into or tried by a Court having jurisdiction over any of such local areas. (4) In the case of a continuing offence which is committed in more local areas than one, it may be inquired into or tried by a Court having jurisdiction over any of such local areas. (5) Where an offence 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. (Numbers 2 to 5 are traceable to Section 178) (6) Where something is an offence by reason of the act done, as well as the consequence that ensued, then the offence may be inquired into or tried by a Court within whose local jurisdiction either the act was done or the consequence ensued. (Section 179) (7) In cases where an act is an offence, by reason of its relation to any other act which is also an offence, then the first mentioned offence may be inquired into or tried by a Court within whose local jurisdiction either of the acts was done. (Section 180) ....
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....erson or thing passed in the course of that journey or voyage. (Section 183). (17) Cases falling Under Section 219 (three offences of the same kind committed within a space of twelve months whether in respect of the same person or not), cases falling Under Section 220 (commission of more offences than one, in one series of acts committed together as to form the same transaction) and cases falling Under Section 221, (where it is doubtful what offences have been committed), may be inquired into or tried by any Court competent to inquire into or try any of the offences. (Section 184). 21. Apart from Sections 177 to 184, which lay down in elaborate detail, the Rules relating to jurisdiction, Chapter XIII of the Code also contains a few other sections. Section 185 empowers the State Government to order any case or class of cases committed for trial in any district, to be tried in any Sessions division. Section 186 empowers the High Court, in case where 2 or more courts have taken cognizance of the same offence and a question as to which of them should inquire into or try the offence has arisen, to decide the district where the inquiry or trial shall take place. Section 187 s....
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....er", the consequence might have been different. 26. It is significant to note that Section 460, which lists out nine irregularities that would not vitiate the proceedings, uses the word "offence" in three places namely Clauses (b), (d) and (e). Section 460 does not use the word "offender" even once. 27. On the contrary Section 461 uses the word 'offence' only once, namely in Clause (a), but uses the word "offender" twice namely in Clauses (l) and (m). Therefore, it is clear that if an offender is tried by a Magistrate not empowered by law in that behalf, his proceedings shall be void Under Section 461. Section 462 does not make the principle contained therein to have force notwithstanding anything contained in Section 461. 28. Section 26 of the Code divides offences into two categories namely (i) offences under Indian Penal Code and (ii) offences under any other special law. Insofar as offences under the Indian Penal Code are concerned, Clause (a) of Section 26 states that they may be tried by (i) the High Court or (ii) the Court of Session or (iii) any other Court, by which such offence is shown in the first Schedule to be triable. In respect of offences under any....
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....r is a juvenile (Section 27) or where the victim is a women [the proviso to Clause (a) of Section 26]. But Section 461(l) focuses on the offender and not on the offence. 34. The saving Clause contained in Section 462 of the Code of 1973 is in pari materia with Section 531 of the Code of 1898. In the light of Section 531 of the Code of 1898, a question arose before the Calcutta High Court in Ramnath Sardar v. Rekharani Sardar (1975) Criminal Law Journal 1139, as to the stage at which an objection to the territorial jurisdiction of the court could be raised and considered. In that case, the objection to the territorial jurisdiction raised before a Magistrate in a petition for maintenance filed by the wife against the husband, was rejected by the Magistrate both on merits and on the basis of the saving Clause in Section 531. But the High Court held that Section 531 would apply only after the decision or finding or order is arrived at by any Magistrate or Court in a wrong jurisdiction and that if any objection to the territorial jurisdiction is taken in any proceeding, it would be the duty of the Magistrate to deal with the same. 35. In Raj Kumari Vijh v. Dev Raj Vijh AIR 1977 SC....