Kerala High Court
M.D.Jose vs Shamsudeen on 10 April, 2004
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
WEDNESDAY, THE 10TH DAY OF APRIL 2013/20TH CHAITHRA 1935
Crl.MC.No. 4027 of 2009 ( )
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ST.364/2005 of JUDICIAL FIRST CLASS MAGISTRATE COURT - III,THRISSUR
PETITIONER(S)/COMPLAINANT:
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M.D.JOSE, S/O.LATE M.C.DEVASSY
MECHERY HOUSE, EAST BAZAR, OLLUR
THRISSUR DISTRICT
BY ADV. SRI.RANJITH XAVIER
RESPONDENTS/ACCUSED AND STATE:
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1. SHAMSUDEEN, PROPRIETOR,
M/S. S.S.TIMBERS, S/O. SYNULLABUDEEN, JASSY COTTAGE
ERRYATHAVUR, BALARAMAPURAM, THIRUVANANTHAPURAM.
2. STATE OF KERALA, REPRESENTEDE BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
R1 BY ADV. SRI.G.SUDHEER
R2 BY PUBLIC PROSECUTOR SHRI VIJU THOMAS
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03-04-2013,
THE COURT ON 10.04.2013 PASSED THE FOLLOWING:
CRL.MC NO.4027/2009
APPENDIX
PETITIONER'S EXHIBITS:
ANNEXURE-A1 TRUE COPY OF THE COMPLAINT IN ST NO.364/2005 FILED BEFORE JFCM
NO.III, THRISSUR
ANNEXURE-A2 TRUE COPY OF THE CHEQUE DRAWN ON BHARAT OVERSEAS BANK LTD,M
BEARING NUMBER 668013 DATED 10.04.2004
ANNEXURE-A3 TRUE COPY OF THE INTIMATION DATED 13.10.2004 RECEIVED BY THE
PETITIONER FROM SOUTH INDIAN BANK LTD, OLLUR BRANCH
ANNEXURE-A4 TRUE COPY OF THE STATUTORY DEMAND NOTICE DATED 25.10.2004
ANNEXURE-A5 TRUE COPY OF THE STATUTORY DEMAND NOTICE RETURNED UNCLAIMED
BY THE 1ST RESPONDENT
ANNEXURE-A6 TRUE COPY OF THE ORDER DATED 18,7.2009 OF JFCM NO.III, THRISSUR IN
ST NO.364/2005
//TRUE COPY//
A.HARIPRASAD, J.
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Crl.M.C. No.4027 of 2009
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Dated this the 10th day of April, 2013.
ORDER
Petitioner preferred a complaint alleging offence against 1st respondent punishable under Sections 138 and 142 of the Negotiable Instruments Act (for short, "NI Act"). Learned Judicial First Class Magistrate-II, Thrissur took cognizance of the complaint and issued process to the accused. Thereafter, accused/1st respondent appeared before the trial court and later absconded. Steps under Sections 82 and 83 of the Code of Criminal Procedure (for short, "Cr.P.C.") were ordered to be taken. After all these proceedings, learned Magistrate returned the complaint under Section 201 Cr.P.C. finding that he has no territorial jurisdiction to try the case. Aggrieved by that order, the complainant has come up before this Court under Section 482 Cr.P.C.
2. Only question arising for consideration is whether the order passed by the learned Magistrate is legally sustainable.
3. Heard the learned counsel on both sides. Perused the records.
4. Learned counsel for the petitioner drew attention of this Court to the following facts averred in the complaint: Petitioner is residing at Ollur in Thrissur District. According to the allegations in the complaint, 1st respondent was to supply timber to the complainant at his business premises. When the timber was not delivered by the 1st respondent, as demanded by the petitioner, he issued the cheque which was dishonoured later. In paragraph 7 of the Crl.MC No.4027/2009 2 complaint, it is pleaded that the cause of action for the complaint arose at Ollur, Thrissur District where bank account of the petitioner is maintained.
5. As per the impugned order, learned Magistrate found that no cause of action arose within the jurisdiction of his court. Section 201 Cr.P.C. says that if the complaint is made to a Magistrate who is not competent to take cognizance of the offence, then he shall, if it is in writing, return it for presentation to the proper court with an endorsement to that effect. In this case, the order for return the complaint was passed after taking cognizance, after issuance of process and after appearance of the accused. It is pertinent to note that the accused did not raise such a contention.
6. Learned counsel for the petitioner submitted that the order for return the complaint passed by the learned Magistrate is in disregard of the ratio of the decision in K.Bhaskaran v. Sankaran Vaidhyan Balan (AIR 1999 SC 3762). Therein, Supreme Court held that the offence under Section 138 of the NI Act can be completed only with the concatenation of a number of acts viz., (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 and (v) failure of the drawer to make payment within 15 days of receipt of the notice. It was also held that it is not necessary that all the five acts should have been perpetrated at the same locality.
7. Subsequently the Supreme Court in Harman Electronics (P) Ltd. and another v. National Panasonic India (P) Ltd. (2009 (1) ILR Kerala 773) explained the decision in K.Bhaskaran's case (supra) and held that mere issue Crl.MC No.4027/2009 3 of a lawyer notice will not confer territorial jurisdiction on a court. However, that finding was arrived at in the particular factual matrix in that case. Supreme Court in Shamshad Begum v. B.Mohammed (2009 KHC 6963) reiterated the law stated in K.Bhaskaran's case (supra). Learned counsel for the petitioner submitted that in this case, parties intended to supply goods at Ollur. Residence of the petitioner is also at the place where his bank is situated. Therefore, the dictum in Mohammed Abdul Kareem Faisal v. Balakrishna Menon and another (2013 (1) KHC 69) is squarely applicable. In that case, learned Single Judge of this Court held that issuance of notice from the place of residence of the complainant and reply sent to that address can definitely be taken as one among the five acts giving rise to a cause of action for filing a complaint at the place where residence of the complainant is situated. Applying this test to this case, it can be see that the Judicial First Class Magistrate Court- III, Thrissur is having jurisdiction and therefore, the order for return the complaint is legally unsustainable.
In the result, petition is allowed. Impugned order is set aside. Learned Magistrate shall take the matter back to file and dispose of it in accordance with law. Parties to appear before the lower court on 06.05.2013.
A. HARIPRASAD, JUDGE.
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