A complaint was lodged by the respondent under

Section 200 of Cr.P.C. for the offence of punishable

under Section 138 of Negotiable Instruments Act, 1881,

alleging that when the cheque which was issued in

favour of the complainant by the accused towards

legally recover oval debt, when presented for realization

was returned for want of funds.

2.

The learned Magistrate after recording his

sworn statement took cognizance of the offence and

issued

summons

to

the

accused.

The

learned

Magistrate, in view of the decisions of the Apex Court

rendered in the case of Dhasharath RoopSingh

Rathod Vs. State of Maharashtra reported in

2014(3) KCCR 2313 returned the complaint to be

presented

before

the

learned

Magistrate

having

territorial

jurisdiction,

since,

the

cheque

was

3

dis-honoured by the Vijaya Bank, Kanakapura Branch,

Kanakapura. Before the complaint was returned to the

complainant for presenting it before the learned

Magistrate having territorial jurisdiction, an ordinance

was issued confirming jurisdiction to the Court within

whose jurisdiction the drawee is having the account. In

view of the ordinance issued, the learned Magistrate

taking into account that the complaint was not returned

to the complainant directed the office to restore the

case to its original position. Taking exception of the

same, this petition is filed.

3.

Learned counsel appearing for the petitioner

submits that the learned Magistrate having passed an

order returning the complaint to be presented before

the learned Magistrate having territorial jurisdiction

becomes functus officio and in the absence of any

power, the learned Magistrate has committed an error

in restoring the complaint to its original file and the

same is one without jurisdiction. In support, reliance is

placed on the decision of the Hon'ble Apex Court in the

case of Devendra Kishanlal Dagalia vs. Dwarkesh

4

Diamonds Private Limited and Others reported in

(2014) 2 SCC 246.

4.

On

the

other

hand,

learned

counsel

appearing for the respondent-Complainant submits that

learned Magistrate by exercising the power under

Section 410 of Cr.P.C has rightly restored the complaint

and the same cannot be set to be one without

jurisdiction.

5.

I have considered the submissions made by

the learned counsel for the parties.

6.

Sub-Section 2 of Section 410 of Cr.P.C.,

specifies that any judicial Magistrate may recall any

case made over by him under Sub-Section (2) of

Section 192 to any other Magistrate and may inquire

into or try such case himself. Section 192 of Cr.P.C.,

specifies

that

any

Magistrate

may

after

taking

cognizance of an offence, make over the case for inquiry

or trial to such other competent Magistrate as the Chief

Judicial Magistrate may, by general or special order,

specify, and thereupon such Magistrate may hold the

inquiry or trial.

5

7.

In the present case, the learned Magistrate

in view of the decision of the Hon'ble Apex Court in the

case of Dhasharath RoopSingh Rathod (supra)

returned to the complaint to be presented before the

learned Magistrate having territorial jurisdiction. Before

the complaint was returned to the complainant an

ordinance was issued conferring jurisdiction to the

Court, within whose jurisdiction the drawee is having an

account to try the offence punishable under Section 138

of NI Act, 1881. Hence, the learned Magistrate taking

into account that he had the territorial jurisdiction to try

the complaint filed by the respondent-Complainant held

that the complaint is maintainable before him and

directed the Registry to restore the case to its original

position by exercising the power under Sub-Section 2 of

Section 410 of Cr.P.C. Hence, the order passed by the

learned Magistrate restoring the compliant to its original

file is in confirmity with the Sub-Section 2 of Section

410 of Cr.P.C.

8.

The application for recall of the order was

made as it was an application not for seeking

6

substantive review, so as to attract the bar contain in

Section 362 of Cr.P.C.

In v