Kerala High Court
Luckson Francis Augustine vs Jolly Abraham Malayil
Author: K. Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
MONDAY, THE 7TH DAY OF OCTOBER 2013/15TH ASWINA, 1935
Crl.Rev.Pet.No. 2019 of 2012 ()
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(AGAINST THE ORDER DATED 14/8/12 IN C.M.P.NO.513/12 IN
S.T.NO.222/12 ON THE FILES OF THE JUDICIAL FIRST CLASS
MAGISTRTATE'S COURT-III, KOCHI.)
REVISION PETITIONER/ACCUSED:
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LUCKSON FRANCIS AUGUSTINE, AGED 33 YEARS,
S/O.FRANCIS AUGUSTINE, KALLUMADICKAL HOUSE,
KURICHY VILLAGE, CHANGANACHERRY,
KOTTAYAM DISTRICT. 686 535.
BY ADV. SRI.BIJU ABRAHAM
RESPONDENTS/COMPLAINANT/STATE:
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1. JOLLY ABRAHAM MALAYIL, AGED 47,
S/O.LATE JOSEPH ABRAHAM,
MALAYIL HOUSE, XXIII/608,
PALLURUTHY, COCHIN 682 006.
2. STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM. 682 031.
R1 BY ADV. SRI.K.R.SUNIL
R2 BY PUBLIC PROSECUTOR SRI. LIJU V. STEPHEN
THIS CRIMINAL REVISION PETITION HAVING COME UP
FOR ADMISSION ON 07-10-2013, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
PETITIONER'S EXHIBITS:
ANNEXURE A1 - A TRUE COPY OF THE COMPLAINT IN
S.T.NO.222/12 ON THE FILES OF THE JUDICIAL FIRST CLASS
MAGISTRATE'S COURT-III, KOCHI.
ANNEXURE A2 - A TRUE COPY OF THE APPLICATI8ON FILED
C.M.P.NO.513/12 IN S.T.NO.222/12 ON THE FILES OF THE
JUDICIAL FIRST CLASS MAGISTRATE'S COURT-III, KOCHI.
ANNEXURE A3 - A TRUE COPY OF THE OBJECTION SUBMITTED BY
THE COMPLAINANT IN C.M.P.NO.513/12 IN S.T.NO.222/12 ON
THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRTATE'S
COURT-III, KOCHI.
ANNEXURE A4 - A TRUE COPY OF THE LEGAL NOTICE DATED
16/6/10 ISSUED BY THE ADVOCATE FOR THE PETITIONER TO THE
COMPLAINANT.
//true copy//
P.A. to Judge
K. HARILAL, J.
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Crl.R.P. No.2019 of 2012
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Dated this the 7th day of October, 2013
ORDER
The Revision Petitioner is the accused in S.T.No.222 of 2012, a private complaint instituted under Sec.138 of the Negotiable Instruments Act, 1881, before the Judicial First Class Magistrate's Court- III, Kochi. The allegation in the complaint filed by the complainant, who is admittedly an N.R.I. business man having his business in the Gulf and U.K, is that in discharge of some obligation of money due under a transaction said to have taken place at UK, as stated in the complaint, the Revision Petitioner/accused herein had issued a cheque for Rs.43,16,851/- drawn on ICICI Bank, Changanassery Branch, dated 20/3/2010. The cheque, when presented for collection by the complainant through his bankers, the Federal Bank Ltd., Palluruthy Branch, the same was dishonoured by the said Bank. Then, he launched the complaint at Crl.R.P. No.2019 of 2012 2 the Magistrate's Court, Kochi, within whose jurisdiction the drawee bank is situated.
2. After appearance of the accused before the trial court, he had filed the petition raising a preliminary issue with regard to the jurisdiction of the court to entertain the complaint. The petitioner had filed the application mainly based on his contention that the presentation of the cheque before the drawee bank would not give rise to a cause of action. In this case, the complaint was filed before the Magistrate's Court, Kochi, solely based on the cause of action that the bank in which the cheque was presented situated within the jurisdiction of that court. The drawee bank is situated at a different place other than the drawer bank and also there is no transaction either at Palluruthy or within the jurisdiction of the court at Kochi. Therefore, the Magistrate having territorial jurisdiction of the areas where the drawee bank situated would not get territorial jurisdiction to entertain the complaint.
3. The court below after hearing the preliminary Crl.R.P. No.2019 of 2012 3 objection, rejected the contention raised by the Revision Petitioner challenging the territorial jurisdiction of the court which entertained the complaint and dismissed the preliminary objection challenging maintainability of the complaint.
4. The learned counsel for the Revision Petitioner submits that though the jurisdictional issue with regard to dishonour of the cheque was elaborately considered in Baskaran V.Balan [1999 KHC 614 (SC)] another single Judge of this Court in Santhoshkumar M.S. V. K.G.Mohanan [ 2008 (3) KLT 461] held in a way that drawer bank alone have jurisdiction and drawyee bank has no jurisdiction. Further in Thresiamma V. State of Kerala [2010(4)KLT 598] a Division Bench of this Court also upheld the same view. In short, the arguments advanced by the learned counsel for the Revision Petitioner is that the 1999 KHC 614 has interpreted the drawee bank and explained in a way that what was intended by the Supreme Court is drawer bank not drawee bank. Per se, I am unable to accept an Crl.R.P. No.2019 of 2012 4 argument advanced by the learned counsel for the Revision Petition in view of the Supreme Court Judgment in 1999 KHC 614.
5. Going by the decision in Bhaskaran V.Balan [1999 KHC 614 (SC)] the Supreme Court held that the offence under Section 138 of the Act can be completed through number of Acts. The following are the acts which are component of the said offence. (i) Drawing of the cheque, (ii) Presentation of the cheque to the bank (iii) Returning the cheque unpaid by the drawee bank,(iv) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount (v) Failure of the drawer to make payment within 15 days of the receipt of the notice . Further it is held that where the offence consists of several acts done in different local areas it may be enquired into the trial by a court having jurisdiction over any of such local areas. Then the Supreme Court further held as follows.
"Thus it is clear, if the five different acts were done in five different localities any one of the courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under S.138 of Crl.R.P. No.2019 of 2012 5 the Act. In other words, the complainant can choose any one of those courts having jurisdiction over any one of the local areas within the territorial limits of which any one of those five acts was done. As the amplitude stands as widened and so expansive it is an idle exercise to raise jurisdictional question regarding the offence under S.138 of the Act."
6. Going by 2010 (4) KLT 598 I find that the issue referred to the Division Bench of this court was whether the Magistrate Court having territorial jurisdiction over a place from where notice as provided under proviso (b) to Section 138 has been issued would get jurisdiction to try a case for offence under Section 138 of the Negotiable Instruments Act. Then the learned counsel for the Revision Petitioner drew my attention to paragraph 23 of the said judgment and submits that the finding is that drawee bank would not get territorial jurisdiction to entertain the complaint. Going by 1999 KHC 614 it is very clear in my mind that the Supreme Court had used the word "drawee" bank and no interpretation is necessary to understand what was intended by the Supreme Court Particularly when expression is plain and unambiguous. When the Supreme Court has laid down Crl.R.P. No.2019 of 2012 6 the proposition without any ambiguity, this Court is inclined to follow the decision of the Supreme court under Article 141 of the Indian Constitution. Therefore, I reject the argument advanced by the learned the counsel for the Revision Petitioner and I confirm the order under challenge.
This Criminal Revision Petition is dismissed.
Sd/-K.HARILAL JUDGE NAN/MJL