Kerala High Court
Smt.Indu vs Nil on 4 February, 2014
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
TUESDAY, THE 4TH DAY OF FEBRUARY 2014/15TH MAGHA, 1935
Crl.MC.No. 3176 of 2011 ( )
----------------------------
(ST 335/2011 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, PARAVUR)
PETITIONER/ACCUSED:
--------------------
SMT.INDU, W/O.MANIMALOL, PALLIKKUNNATHU,
VARIKOLI.P.O, KALLACHI, KOZHIKODE DISTRICT.
BY ADV. SRI.K.B.ARUNKUMAR
COMPLAINANT/STATE AND DEFACTO COMPLAINANT:
------------------------------------------
1. STATE OF KERALA, REPRESENTED BY THE SUB
INSPECTOR OF POLICE, NADAPURAM POLICE STATION
NADAPURAM, REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM, PIN-682018.
2. SUDARSANAN, S/O.DHARMAJAN, GURUVILASAM,
PAMPURAM, KALLUVATHUKKAL, PARIPPALLY VILLAGE
KOLLAM DISTRICT, REPRESENTED BY HIS POWER OF
ATTORNEY HOLDER ASOKAN, S/O.RAMACHANDRAN, CHALUVILA
VEEDU, PAMPURAM, PARIPPALL VILLAGE, KOLLAM DISTRICT-691574.
R2 BY ADV. SRI.ALEX N.MATHEW (KOLLAM)
R2 BY ADV. SRI.H.RAMANAN
R1 BY PUBLIC PROSECUTOR SRI. REJI JOSEPH
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
04-02-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No. 3176 of 2011 ( )
APPENDIX
PETITIONER'S EXHIBITS:
ANNEXURE-1: THE ACCUSED COPY OF THE COMPLAINT IN ST.NO.335/2011 NOW
PENDING ON THE FILE OF JUDICIAL IST CLASS MAGISTRATE
COURT, PARAVUR
RESPONDENTS' EXHIBITS: NIL
//TRUE COPY//
PA TO JUDGE
Scl.
P.D.RAJAN, J
.........................................
Crl.M.C.No.3176 of 2011
.........................................
Dated 4th February, 2014
ORDER
This petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings in S.T.No.335 of 2011 of Judicial First Class Magistrate Court, Paravur. The above case was filed under Section 138 of N.I.Act.
2. The case, S.T.No.333 of 2011 was filed by the second respondent in the above court alleging that petitioner borrowed an amount of UAE currency AED 25,000/- equivalent to Indian Rs.3,12,000/- from the second respondent on 25.8.2010 while the petitioner and second respondent were in Gulf-Dibba. In discharge of the debt, petitioner issued a cheque dated 25.10.2010 drawn on Emirates NBD Branch FMB, bearing No.7. Petitioner assured that she will repay the amount to the first respondent as and when she returns to Kerala. But she failed to pay the amount as agreed and she presented Crmc 3176/2011 2 it for encashment through NBD (Banker) on 20.12.2010, it was dishonoured for the reason "referred to drawer". In the circumstances, first respondent issued a registered notice on 17.1.2011 to the petitioner from Paravoor demanding the amount covered by the cheque. After receipt of the notice, there was no repayment. Hence a case was filed through the power of attorney. Petitioner is residing at Kozhikode and she has now approached this court to quash the proceedings by invoking the jurisdiction under Section 482 Cr.P.C.
3. Heard both sides. The learned counsel for the petitioner contended that petitioner is residing at Kozhikode and Kollam court has no territorial jurisdiction to entertain Annexure 1. Since the transaction was carried out in Gulf, Paravur Court where Annexure 1 was filed has no territorial jurisdiction to decide the case. He relied on the following decisions. Harman Electronics (P)Ltd V. National Panasonic India Ltd.(2009(2) KLT Crmc 3176/2011 3
113)Philipose V. Chandy(2009(4)KLT 305), and Mosaraf Hossain Khan V. Bhagheeratha Engineering Ltd and others (2006(3) SCC 658).
3. Learned counsel for the second respondent strongly resisted the above contention and contended that the transaction was within the jurisdiction of Paravur court. In order to substantiate his contention, learned counsel relied on the decisions reported in Nishant Aggarwal V. Kailash Kumar Sharma (2013(3) KLT
231), Bhaskaran V. Balan (1999(3) KLT 440).
4. Now the question that arise for consideration is whether Annexure 1 is to be quashed invoking the jurisdiction under Section 482 Cr.P.C. It is specific case of the second respondent that petitioner borrowed a sum of Rs.3,12,000/- when she was working at UAE on condition that she will return the amount as and when she returns to Kerala, and at that time she issued a cheque in favour of the second respondent. When petitioner reached Crmc 3176/2011 4 Kerala, the power of attorney holder contacted her and she evaded payment, in the circumstances, the cheque was presented for encashment through NBD (Banker) on 20.12.2010, it was dishonoured for the reason "referred to drawer" for which a memo was issued by the Bank. After that a notice u/s.138(c) of the Act was issued to the petitioner and subsequently the above complaint was filed.
5. According to Cr.P.C, every offence shall ordinarily be enquired into and tried in a court within whose jurisdiction it was committed. It is pertinent to note that when a cheque is dishonoured, that itself will not complete the offence mentioned under Section 138 of N.I.Act. It attains completion only when the drawer of the cheque fails to pay the cheque amount within 15 days of the receipt of notice mentioned under Section 138(c) of N.I.Act. Plain reading of Section 138(b) of N.I.Act clearly indicate that holder of the cheque makes a demand for Crmc 3176/2011 5 the payment of the money by giving a notice in writing within 30 days from the date of receipt of information from the bank. Therefore, only after non payment of the cheque amount as per the notice, cause of action arises. Apex Court in Bhaskaran's case (supra) held as follows:-
"10. Learned counsel for the appellant first contended that the trial court has no jurisdiction to try this case and hence the High Court should not have converted the acquittal into conviction on the strength of the evidence collected in such in such a trial. Of course, the trial court had upheld the plea of the accused that it had no jurisdiction to try the case.
11. We fail to comprehend as to how the trial court could have found so regarding the jurisdiction question. Under S.177 of the Code "every offence shall ordinarily be inquired into and tried in a court within whose jurisdiction it was committed". The locality where the bank (which dishonoured the cheque) is situated cannot be regarded as the sole criteria to determine the place of offence. It must be remembered that offence under S.138 would not be completed with the dishonour of the cheque. It attains completion only with the failure of the drawer of the cheque to pay the cheque amount within the expiry of 15 days mentioned in clause ) of the proviso to S.138 of the Act. It is normally difficult to fix up a particular locality as Crmc 3176/2011 6 the place of failure to pay the amount covered by the cheque. A place, for that purpose, would depend upon a variety of factors. It can either be at the place where the drawer resides or at the place where the payee resides or at the place where either of them carries on business. Hence, the difficulty to fix up any particular locality as the place of occurrence for the offence under S.138 of the Act.
12. Even otherwise the rule that every offence shall be tried by a court within whose jurisdiction it was committed is not an unexceptional or unchangeable principle. S.177 itself has been framed by the legislature thoughtfully by using the precautionary word "ordinarily" to indicate that the rule is not invariable in all cases. S.178 of the Code suggests that if there is uncertainty as to where, among different localities, the offence would have been committed the trial can be had in a court having jurisdiction over any of those localities. The provision has further widened the scope by stating that in case where the offence was committed partly in one local area and partly in another local area the court in either of the localities can exercise jurisdiction to try the case. Further again, S.179 of the Code stretches its scope to a still wider horizon. If reads thus:
"179. Offence triable where act is done or consequence ensues. When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been Crmc 3176/2011 7 done or such consequence has ensued".
13. The above provisions in the Code should have been borne in mind when the question regarding territorial jurisdiction of the courts to try the offence was sought to be determined.
14. The offence under S.138 of the Act can be completed only with the concetenation of a number of acts. Following are the acts which are components of the said offence : (1) Drawing of the cheque, (2) presentation of the cheque to the bank, (3) Returning the cheque unpaid by the drawee bank, (4) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (5) Failure of the drawer to make payment within 15 days of the receipt of the notice.
15. It is not necessary that all the above five acts should have been perpetrated at the same locality. It is possible that each of those five acts could be done at 5 different localities. But concatenation of all the above five is a sine qua non for the completion of the offence under S.138 of the Code. In this context a reference to S.178(d) of the Code is useful. It is extracted below.
" where the offence consists of several acts done in different local areas, it may be inquired into or tried by a court having jurisdiction over any of such local areas".
6. The jurisdiction of the criminal courts into Crmc 3176/2011 8 enquiries and trials are mentioned under Chapter 13 of the Code from Section 177 to 189 of which offences committed outside India shall be dealt with under Section 188 of Cr.P.C. It is admitted case of the petitioner that initial transaction was made at U.A.E and after the cheque was dishonoured, second respondent came to India and issued notice to the petitioner. The legal principle laid down in Bhaskaran's case show that five different acts were done in five different localities. Any one of the court exercising the jurisdiction is one of the five localities which could become the place of trial for the offence under Section 138 of N.I.Act. In other words, the complainant has the liberty to chose any one of the court having jurisdiction over any of the local areas within the territorial limits of which any one of the five acts was done.
7. Therefore, accepting the principle of Apex Court in Bhaskaran's case(supra), it is clear that the transaction Crmc 3176/2011 9 was within the jurisdiction of Paravur Court. There is no merit in this Crl.M.C and it is accordingly dismissed. I make it clear that I have discussed only the territorial issue and petitioner is at liberty to raise all her contentions before the lower court.
P.D.RAJAN, JUDGE lgk