Kerala High Court
T.S.Suresh Babu vs P.M.Manzoor on 27 September, 2014
Author: K.Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
THURSDAY, THE 13TH DAY OF NOVEMBER 2014/22ND KARTHIKA, 1936
Crl.Rev.Pet.No. 1947 of 2014 ()
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AGAINST THE ORDER/JUDGMENT IN CC 572/2013 of JUDICIAL MAGISTRATE OF
FIRST CLASS COURT-I,KOCHI DATED 27-09-2014
/PETITIONER/COMPLAINANT:
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T.S.SURESH BABU, AGED 53 YEARS,
S/O. LATE K. THANKAPPAN PILLAI,
MALAYALAM CINE DIRECTOR, SREEKRISHNALAYAM,
POOJAPURA.P.O., THIRUVANANTHAPURAM-12.
BY ADVS.SRI.SHAJI P.CHALY
SRI.R.SANJITH
SMT.C.S.SINDHU KRISHNAH
SRI.M.SHINO
RESPONDENTS/ACCUSED/STATE:
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1. P.M.MANZOOR,
PROPRIETOR, M/S. MASS REELS, S/O. P.M. MOHAMMMEDKUTTY,
ASIYA NIVAS, CHELARI.P.O., THENHIPALAM,
MALAPPURAM-673 636.
2. STATE OF KERALA,
REPRESENTED BY ITS PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.
R2 BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN.
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON
13-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.Rev.Pet.No. 1947 of 2014
APPENDIX
PETITIONER'S ANNEXURES:
ANNEXURE A1: COPY OF AGREEMENT BETWEEN PARTIES DT. 27.6.2011.
ANNEXURE A2: COPY OF AT PAR CHEQUE ISSUED BY RESPONDENT DT.
11.11.11 DRAWN ON THE FEDERAL BANK LTD. THENJIPALAM
BRANCH, KOZHIKODE,
ANNEXURE A3: COPY OF THE COMPLAINT FILED BEFORE THE LEARNED
JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOCHI AS
C.C.572/13.
ANNEXURE A4: COPY OF ORDER IN TR.P.(Crl.)22/14 DT. 20.8.14.
ANNEXURE A5: COPY OF TRANSFER ORDER PASSED BY THE JUDICIAL FIRST
CLASS MAGISTRATE COURT-I, KOCHI IN C.C.572/13 DT. 27.9.14.
ANNEXURE A6: COPY OF CHEQUE RETURN MEMO OF FEDERAL BANK,
ERNAKULAM.
RESPONDENT'S ANNEXURES: NIL
/TRUE COPY/
P.A. TO JUDGE
VPV
'C.R'
K.RAMAKRISHNAN, J
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Crl.R.P.No.1947 OF 2014
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Dated this the 13th day of November, 2014
O R D E R
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Complainant in CC.No.572/2013 on the file of Judicial First Class Magistrate Court-I, Kochi, is the revision petitioner herein.
2. The revision petitioner herein filed a complaint under section 138 of the Negotiable Instruments Act (herein after called the Act) before the Judicial First Class Magistrate Court-I, Kochi, against the first respondent herein alleging offences under section 138 of the Act, on the basis of a cheque given by the first respondent drawn on Federal Bank, Thenhipalam branch, Kozhikode in favour of the complainant on the basis of a law prevailing at that time and on the basis of the decision of the Apex Court, the case was taken on file by the Judicial First Class Magistrate Court-I, Kochi. Thereafter, on the basis of the decision of the Apex Court in Dashrath Rupsingh Rathod V. State of Maharashtra and Another [2014 (3) KHC 362], wherein the Supreme Court has held that the court within whose jurisdiction the drawee bank is situated alone will get jurisdiction to entertain a complaint under section 138 of the Act and also directed the Magistrate to Crl.R.P.No.1947 OF 2014 2 return the complaint if evidence is not taken to present before the proper court and it is further observed in the same decision that if is presented within 30 days of such a return when it will be deemed to be filed within time, the learned Magistrate had passed Annexure-A5 order directing return of the complaint as per order dated 27.09.2014, that is being challenged by the petitioner by filing this revision relying on a decision of the Bombay High Court reported in Ramanbhai Mathurbhai Patel V State of Maharashtra [2014(3) KHC 847 (BOM)] in which it has held that if it is a cheque payable at par, this Court within whose jurisdiction, the bank it was presented and returned will get jurisdiction to entertain the complaint.
3. Considering the fact that the judgment of the Bombay High Court has been challenged by the complainant before the Hon'ble Supreme Court by filing petitions for Special Leave to appeal (Criminal) No.7251/2014, and the Hon'ble Supreme Court has granted interim stay of the operation of the order, this court felt that the revision can be disposed of at the admission stage itself after hearing the learned counsel appearing for the revision petitioner and the learned Public prosecutor appearing for the second respondent and dispensing with notice to the first respondent.
4. The counsel for the revision petitioner submitted Crl.R.P.No.1947 OF 2014 3 that in view of the decision of the Bombay High Court mentioned above in the case of cheques issued at par, then the branch in which it was presented and dishonoured will be deemed to be the bank dishonouring the cheque giving jurisdiction to he Magistrate within whose jurisdiction that bank is situated to entertain the complaint. It is true that the Bombay High Court has taken a view in the decision mentioned above namely, Ramanbhai Mathurbhai Patel V State of Maharashtra [2014(3) KHC 847 (BOM)] that in the case of cheque issued at par then the bank in which it was presented and dishonoured will be deemed to be the drawee bank for the purpose of dishonour and court within whose jurisdiction that bank is situated will get jurisdiction to entertain the complaint explaining the decision of the Apex Court in Dashrath Rupsingh Rathod V. State of Maharashtra and Another [2014 (3) KHC 362], (supra). Since, the Hon'ble Supreme Court has stayed the operation of that order, then it cannot be said that the dictum is still in force so as to have a binding effect as well. Further, it was a decision of another High Court which has got only persuasive value for this court and in fact it is not having binding effect as well. But however, in view of the fact that the judgment in that case has been stayed by the Supreme Court, it cannot be taken as a case still having binding Crl.R.P.No.1947 OF 2014 4 force so as to follow and in such circumstances, the dictum laid down in the decision of the Supreme Court mentioned above will prevail and the order passed by the court below returning the complaint for presentation before proper court cannot be said to be illegal which warrants interference at the hands of this court invoking the revisional power under section 397 of the Code of Criminal Procedure. So, the revision lacks merit and the same is liable to be dismissed. However, if the complainant files the complaint within two weeks from today before the appropriate court as directed as per order in Annexure-A5, then it will be deemed to be filed within time, as mentioned by the Supreme Court in the decision reported in Dashrath Rupsingh Rathod V. State of Maharashtra and Another [2014 (3) KHC 362], (supra).
With the above observation, the revision is dismissed.
sd/-
K.RAMAKRISHNAN, JUDGE R.AV //True Copy// PA to Judge