IMPORTANT POINT
The trial even if it is held to be within a wrong territorial jurisdiction would not vitiate the same unless such error, if any, occasioned failure of justice.

U.V. Bakre, J.— This is complainants appeal from Order dated 9th April, 2009 passed by the learned Judicial Magistrate First Class, Ponda (trial Magistrate, for short) in Criminal Case No. 582/OA/2006/C holding that he has no territorial jurisdiction to entertain the said complaint.

2. The said complaint is in respect of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (the Act, for short).

3. The complainant is a company registered under the Companies Act, 1956 and having its registered office at Worli, Mumbai and various divisions including Fan and Electrical Division at Bethoda, Ponda Goa. The accused was the authorized dealer of the complainant for various ranges of electrical items. The accused had from time to time placed orders with the complainant and the complainant had sold, supplied and delivered to the accused various electrical items. According to the complainant, the accused had accepted the delivery of the same without raising any dispute as to its quality and/or quantity thereof and the complainant thereafter had raised, issued and delivered to the accused their invoices, which were accepted by the accused, and the complainant was assured that the amount thereunder will be paid very shortly. The complainant has alleged that after a number of requests and reminders being made by the complainant, the accused effected various part payments from time to time and towards the balance payment, the accused issued in favour of the complainant a Cheque No. 318590 duly signed and filled in, except the amount in figures and words and the date, as the accused not aware of the exact amount due and payable by him to the complainant on the day when he issued the said cheque. The complainant further stated in the complaint that the accused requested the sales representative of the complainant to fill the amount after adjusting various credit notes etc. and had assured that the said cheque will be honoured on its presentation. The said cheque was drawn on C.K.P. Co-Operative Bank Ltd., Thane. It is submitted by the complainant that later on the amount of Rs. 1,05,892.82 paise was found legally due and payable by the accused to the complainant and therefore the blanks in the said cheque were filled in. The cheque was presented by the complainant to their bankers namely ICICI Bank Ltd., Ponda Branch for realization. The said cheque was returned unpaid on 20.7.2006. A legal notice was therefore sent from Ponda by the complainant which is dated 26.7.2006 and the same was received by the accused at Thane on 3.8.2006. The accused failed to make the payment of the cheque amount which was demanded and replied the said notice by letter dated 9.8.2006. Therefore, the complainant lodged the complaint on 4.9.2006 in the Court of Judicial Magistrate First Class at Ponda, Goa, under Section 138 of the Act.

4. Process was issued by the trial Magistrate against the accused, who pleaded not guilty to the substance of accusation that was explained to him. The complainant adduced its evidence and tendered the affidavit in evidence of its power of attorney holder. He was cross-examined. He has produced various documents on record. The statement of the accused came to be recorded under Section 313 of the Code of Criminal Procedure. When the case was pending for defence evidence, the accused filed an application dated 20.3.2009 thereby challenging the territorial jurisdiction of the trial Magistrate.

5. The contention of the accused was that the cheque in question was drawn on C.K.P. Co-Operative Bank Ltd., Gokhale Road, Thane and was handed over to the complainant at its office at Worli and the payment against the said cheque was stopped at Thane and therefore the Trial Magistrate had no jurisdiction to entertain the complaint. The accused prayed that the complaint be returned to the complainant for presentation to the proper Court. He placed reliance on the Judgment of the Aurangabad Bench of this Court in Di