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2022 (10) TMI 261 - HC - Indian LawsDishonor of Cheque - power of witness/attorney to file the complaint on behalf the complainant - territorial jurisdiction of learned Magistrate at Quepem to try and decide the complaint filed on behalf of the complainant - Section 138 of the Negotiable Instruments Act - HELD THAT:- Section 138 of the Negotiable Instruments Act provides that the payee or the holder in due course of the cheque must make demands for the payment of the said cheque by giving notice; in writing and in case of failure of payment of the amount mentioned in the cheque within the stipulated period, the complaint could be filed within a period of one month of the date on which the cause of action arose under clause (c) of the proviso to Section 138. Thus, the payee or the holder in due course is the Society/complainant herein as the cheque was issued in the name of the Society itself which is clear from the cheque produced on record. Admittedly, the Society has to be represented by an authorised person before the Court of law either to launch prosecution of a case or to defend. The main thrust on behalf of the accused persons is on the interpretation which is adopted by the learned Additional Sessions Judge in both the matters thereby observing that the words "proceed all the cases" as found in the resolution cannot be interpreted otherwise but has to be considered that the authority is given to proceed in all cases which are pending as on the date of resolution. In other words, both the learned Additional Sessions Judges accepted the contentions of the accused persons that such resolution nowhere gives power to the representative to file criminal cases but only authorised him to appear and conduct the pending cases. The proper course available in the present matter before the learned Additional Sessions Court was to quash and set aside the judgment passed by the learned Magistrate at Quepem for want of territorial jurisdiction and to remand the matter with directions that the matter stands transferred as observed by the Apex Court, to the jurisdictional Court at Ponda as the transaction took place in Shiroda. Dismissing the said case for want of territorial jurisdiction, was, therefore, not proper as complaint was filed, entertained and decided on the basis of the law laid down by the Apex Court in the case of K. Bhaskaran [1999 (9) TMI 941 - SUPREME COURT]. The proper course is to quash and set aside the judgment passed by the learned Magistrate at Quepem in Criminal Case No.38/NI/2009 and to remand it to the said Court with directions to transfer the said case to the learned Magistrate having territorial jurisdiction, i.e. the Court at Ponda. The approach of the Court must be justice oriented. Appeal allowed.
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