Sr. No.2 Regular List HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR TrP (Crl) No.5/2025 M/S GULBERG COLD CHAIN ... PETITIONER(S) Through: - Mr. N. A. Tabassum, Advocate. Vs. MOHAMMAD SHAFI WANI …RESPONDENT(S) Through: - None. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE ORDER(ORAL) 13.05.2025 1) The petitioner through the medium of present petition has sought transfer of the complaint filed by him against the respondent from the Court of Judicial Magistrate 1st Class (City Judge), Srinagar (hereinafter referred to as “the trial court”), to any other court of competent jurisdiction of the District Pulwama or in the alternative to direct the trial court to proceed ahead and conclude the trial in accordance with law. 2) Heard and considered. 3) It appears that the petitioner has filed a complaint under Section 138 of the Negotiable Instruments Act against the respondent before the trial court, in which the trial is going on. According to the petitioner, seven number of cheques, which are the subject matter of the complaint, were presented by him for encashment by depositing the same into his CC Account maintained with J&K Bank LCU, Lassipora, Pulwama, but the 2 TrP (Crl) No.05/2025 same were returned unpaid. It has been contended that on 03.08.2024, when during trial of the case, statement of the Manager of J&K Bank, Branch Residency Road, Srinagar, was recorded, it came to the fore that the return memo in respect of the cheques in question had been issued by the J&K Bank Branch Lassipora Pulwama, though at the top of the return memo, the name of the Bank was shown as J&K Bank Residency Road, Srinagar. 4) It has been submitted that the cheques were presented by the petitioner in the Bank which is located in District Pulwama, as such, trial of the case has to take place before Magistrate of competent jurisdiction in District Pulwama. On this ground, it is being contended that the complaint is required to be transferred to a Magistrate of competent jurisdiction in District Pulwama so as to avoid any objection with regard to territorial jurisdiction of trial court. In the alternative, it has been prayed that the trial court may be directed to proceed in the matter in accordance with law. 5) It is a settled law that a complaint for offence under Section 138 of Negotiable Instruments Act ,1881 can be inquired into and tried only by the court within whose local jurisdiction, the cheque is delivered for collection i.e., the branch of the Bank of the payee or the holder in due course or if the cheque is presented for payment otherwise through an account, the location of the branch of the drawee bank where the drawer maintains the account would be determinative of the territorial jurisdiction. This is clear from the provisions contained in Section 142 of the Negotiable Instruments Act and the law laid down by the Supreme Court in the Case of Bridgestone India Pvt. Ltd. v. Inderpal Singh, (2016) 2 SCC 75 followed by the judgment of the Supreme Court in the case of Sh. 3 TrP (Crl) No.05/2025 Sendhuragro and Oil Industries v. Kotak Mahindra Bank Limited, 2025 Livelaw SC 292. 6) Thus, it is only the Magistrate having territorial jurisdiction over the area where the branch of the Bank in which the payee maintains the account wherein the cheque is deposited for its encashment, who is competent to entertain and try a complaint in respect of dishonour of such cheque. The petitioner through the medium of present petition desires this court to either transfer the complaint to the Magistrate having jurisdiction or to confirm and legalize the proceedings which have taken place before the trial court. 7) Admittedly, the cheques, which are the subject matter of the complaint were presented for encashment by the petitioner in the Bank situated at Lassipora, Pulwama, which is beyond the territorial jurisdiction of learned trial court. Thus the said court does not have jurisdiction to entertain and try the complaint filed by the petitioner. Section 447 of BNSS does not vest power with the High Court to transfer a criminal case on the ground that the court before whom the said case is pending does not have the jurisdiction to inquire into or try the said case. It is only in cases where the High Court is of the opinion that a fair and impartial inquiry or trial cannot be had in the criminal court subordinate to it or that some question of law of unusual difficulty is likely to arise or the transfer of the case would tend to general convenience of the parties or witnesses, that the High Court can order transfer of a case from one criminal court to another criminal court within its jurisdiction. None of these conditions are fulfilled in the present case. The lack of jurisdiction by the trial court in entertaining and 4 TrP (Crl) No.05/2025 trying the complaint filed by the petitioner cannot form the basis for transferring the complaint. 8) So far as the alternative prayer made by the petitioner is concerned, the same can also not be granted in his favour because a court which lacks inherent jurisdiction to entertain a case cannot be vested with jurisdiction by consent of the parties. Merely because the trial of the case has progressed before the learned trial court cannot form a ground to legalize the proceedings before the said court. The learned trial court lacks the inherent jurisdiction to entertain and try the complaint. The said illegality goes to the root of the case and cannot be set right by this Court in exercise of its powers under Section 447 or Section 528 of BNSS. The proper course for the petitioner is to apply to the learned trial court for return of the complaint with permission to file the same before the Magistrate having jurisdiction. Of course, the petitioner will have the option of applying for condonation of delay in filing the complaint after presentation of the complaint before the Magistrate having jurisdiction. 9) For the foregoing reasons, I do not find any merit in this petition. The same is dismissed accordingly. 10) A copy of this order be sent to the trial court. (SANJAY DHAR) JUDGE Jammu 13.05.2025 “Bhat Altaf-Secy” Whether the order is reportable: Yes/No Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 14.05.2025 21:38