- (1.) VINOD Prasad, J. M/s. Goyal Agencies and his two partners Arun Kumar Goyal and Vinesh Kumar Goyal have invoked our extraordinary jurisdiction under Article 226 of the Constitution of India with the prayer to quash complaint No. 84 of 2006 M/s. Videocon Industries Ltd. M/s. Goyal Agencies, under sections 415, 417, 418 and 420 IPC, pending in the Court of City Munsif/judicial Magistrate 1st Class, Srinagar (Jammu and Kashmir) vide Annexure No. 4 to the writ petition by issuing writ, order or direction in the nature of certiorari. The ancillary prayer is to issue any other writ, order or direction, which deems fit and proper on the facts and circumstances of the case.
(2.) AT the very outset at the time of admission the question which was mooted for our consideration by the contesting rival sides is as to whether this Court possesses territorial jurisdiction to quash the complaint, filed before City Munsif/judicial Magistrate 1st Class, Srinagar (Jammu and Kashmir ). Because of the above noted legal question we deferred the hearing of the petition on its merits and heard the rival contesting side only on the question of maintainability of the writ petition before us. Sri Murlidhar, learned Senior Counsel for the petitioners armed with a judgement of the Apex Court in Navin chandra N. Majithia v. State of Maharashtra and others, 2000 (41) ACC 968 (SC ). vehemently harangued that the present writ petition is maintainable in this Court. He further contended that the Apex Court in the aforesaid judgement has laid down the law that every High Court has got a territorial jurisdiction to entertain a writ petition, if some part of cause of action has arisen within its territorial limits. Learned Senior Counsel for the petitioners placed much emphasis on paragraph 6 of the aforesaid judgement wherein the Apex Court has observed thus:- " Therefore, in determining the objection of lack of territorial jurisdiction the Court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an inquiry as to the correctness or otherwise of the said facts. In other words the question whether a High Court has territorial jurisdiction to entertain a writ petition must be answered on the basis of the averments made in the petition, the truth or otherwise whereof being immaterial. To put it differently, the question of territorial jurisdiction must be decided on the facts pleaded in the petition. Therefore, the question whether in the instant case the Calcutta High Court had jurisdiction to entertain and decide the writ petition in question even on the facts alleged must depend upon whether the averments made in paragraphs 5, 7,18, 22,26 and 43 are sufficient in law to establish that a part of the cause of action had arisen within the jurisdiction of the Calcutta High Couit" Learned Senior Counsel for the petitioners further harangued that it will be a travesty of justice if an unscrupulous litigant is allowed to launch a malicious prosecution in any part of the country, whether or not any part of the incident has occurred there or not and if such a practice is allowed specially in the corporate world, the business will crumbled down eroding the very economic edifice of the country. Learned Counsel for the petitioners contended that it will be too hazardous a proposition to allow an unorthodox litigant to circumvent the provision of sections 177 to 189 Cr. P. C. incorporated under Chapter XIII thereof relating to the jurisdiction of criminal Courts in inquiry and trial and lodge a complaint outside the limits of those places where any part of cause of action had occurred. In the submission of learned Senior Counsel for the petitioners no part of cause of action nor any part of the incident occurred in state of Jammu and Kashmir within the territorial limits of Judicial Magistrate First Class Srinagar, Jammu and Kashmir and therefore, the wielding of power of the said Magistrate under section 190 Cr. P. C. by the complainant is a vindictive exercise tainted with malafides. Learned Senior Counsel for the petitioners further placed reliance on paragraph 27 of the judgement of Navinchandra N. Majithia v. State of Maharashtra and others (supra) and contended that the present writ petition is maintainable before us. Paragraph 27 of the aforesaid judgement is reproduced below:- " Tested in the light of the principles laid down in the cases noted above the judgement of the High Court under challenge is unsustainable. The High Court failed to consider all the relevant facts necessary to arrive at a proper decision on the question of maintainability of the writ petition, on the ground of lack of territorial jurisdiction. The Court based its decision on the sole consideration that the complainant had filed the complaint at Shillong in the State of Meghalaya and the petitioner had prayed for quashing the said complaint. The High Court did not also consider the alternative prayer made in the writ petition that a writ of mandamus be issued to the State of Meghalaya to transfer the investigation to Mumbai Police. The High Court also did not take note of the averments in the writ petition that filing of the complaint at Shillong was a malafide move on the part of the complainant to harass and pressurise the petitioners to reverse the transaction for transfer of shares. The relief sought in the writ petition may be one of the relevant criteria for consideration of the question but cannot be the sole consideration in the matter. On the averments made in the writ petition gist of which has been noted earlier it cannot be said that no part of the cause of action for filing the writ petition arose within the territorial jurisdiction of the Bombay High Court. "
(3.) LEARNED AGA contrarily retorted the argument of the learned Senior Counsel for the petitioners and contended that the cause of action in the present case arose because of filing of the complaint before Judicial Magistrate, First Class, Srinagar, Jammu and Kashmir who has taken cognizance of the offences. LEARNED AGA contended that it is not the incident which is material for determining the cause of action. He contended that the totality of facts has to be looked into for determining whether a High Court 'has got a territorial jurisdiction or not to entertain a writ petition. He further contended that disputed question of facts cannot be allowed to scuttle a legitimate prosecution engineered by the complainant. According to his submission the complainant must get a chance to substantiate his allegations as to whether any part of the incident or cause of action accrued in State of Jammu and Kashmir or not? In his submission to nip the prosecution into bud at the very threshold of the filing of the complaint will not be an exercise proper for this Court to be undertaken as the judicial restrain demands that complainant should be allowed to establish his case at a proper trial. LEARNED AGA con-cludingly contended that from the averments made in the complaint it is very perceptible that the complaint filed at Jammu and Kashmir is maintainable and there is no malafidy on the part of the complainant to file the complaint there at Srinagar as the averments made therein disclose commission of offence and therefore, this writ petition is bereft of merit and is not maintainable in this Court and the petitioners should be directed to seek remedy before the Jammu and Kashmir High Court. We have heard and cogitated over the matter and have gone through the averments made in the complaint.;