Kerala High Court
V.C.Anilkumar vs Magma Fincorp Limited on 9 September, 2013
Author: K.Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
MONDAY,THE 9TH DAY OF SEPTEMBER 2013/18TH BHADRA, 1935
WP(C).No. 19923 of 2011 (M)
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PETITIONER(S):
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V.C.ANILKUMAR, S/O.CHELLAPPAN NAIR,
VIJAYA SADANAM HOUSE, VEROOR P.O., CHANGANACHERRY,
KOTTAYAM.
BY ADVS.SRI.M.P.MADHAVANKUTTY
SRI.GOKUL DAS V.V.H.
RESPONDENT(S):
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1. MAGMA FINCORP LIMITED, 'MAGMA HOUSE',
24, PARK STREET, KOLKATA - 700 016,
REPRESENTED BY ITS AUTHORIZED REPRESENTATIVE,
MD. GOLAM RAHAMAN SAFIULLA.
2. THE MANAGER,
MAGMA FINCORP LIMITED, JAIN TOWERS, OPP.K.S.E.B.,
N.H.BYPASS ROAD, VYTTILA, COCHIN,
KERALA-682 019.
3. STATE OF WEST BENGAL,
REPRESENTED BY ITS CHIEF SECRETARY, KOLKATA,
WEST BENGAL, PIN - 700 001.
4. STATE OF KERALA,
REPRESENTED BY ITS PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031.
5. UNION OF INDIA,
REPRESENTED BY HOME SECRETARY,
NEW DELHI. PIN - 100 001.
R1 & R2 BY ADV. SRI.VARGHESE P KURIAKOSE
R2 BY ADV. SRI.T.A.ABDUL RASHEED
R2 BY ADV. SRI.K.H.ASHARAF
R3 & R4 BY GOVERNMENT PLEADER SRI V.S SREEJITH
R5 BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLYHEARD ON 09-09-2013,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 19923 of 2011 (M)
APPENDIX
PETITIONER'S EXHIBITS
EXT.P1 COPY OF THE LETTER ISSUED TO THE PETITIONER BY THE 2ND
RESPONDENT
EXT.P2 COPY OF THE SUMMONS AND COMPLAINT ISSUED BY THE 17TH
METROPOLITAN MAGISTRATE COURT, CALCUTTA.
RESPONDENT'S EXHIBITS: NIL
//TRUE COPY//
P.A. TO JUDGE
LSN
C.R
K.RAMAKRISHNAN, J
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W.P.(C).NO.19923 OF 2011
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Dated this the 09th day of September, 2013
JUDGMENT
This is an application filed by the petitioner, who is the accused in C/15006/2011 on the file of the Metropolitan Magistrate, 17th Court, Calcutta, to quash the proceedings under Section 226 and 227 of the Constitution of India.
2. The case of the petitioner was that, the second respondent herein entered into a hire purchase agreement dated 31.08.2009 with regard to the purchase of a 'Mahindra Scorpio' car. The entire transaction pertaining to the above financial transaction has taken place at Kochi, i.e., in State of Kerala. The petitioner handed over his signed blank cheques to the second respondent as security at their above mentioned office at Vyttila, Kochi. Due to financial exigencies, the petitioner committed default in making payments. The second respondent initiated steps for recovering the amounts due W.P.(C).NO.19923 OF 2011 2 from the petitioner. The first respondent on whose behalf the second respondent acted filed a complaint before the Chief Metropolitan Magistrate, Calcutta, under Section 138 of the Negotiable Instrument Act (for short 'the Ac t') and that appears to have been made over to 17th Metropolitan Magistrate, Court, Calcutta for disposal where it was numbered as C/15006/2011. The complaint filed by the first respondent is silent with regard to the territorial jurisdiction of the court at Calcutta. Further no part of the transaction has taken place at Calcutta and that court has no jurisdiction to entertain the complaint and the complaint was filed before Calcutta court so as to pressurize the petitioner to pay the amount. So, he prayed for quashing Ext.P2 summons issued by that court and also to quash the complaint filed by the first respondent on the basis of the cheque issued by the petitioner. Hence the petition.
3. Heard the counsel for the petitioner and counsel for the respondents 1 and 2 and the learned Public W.P.(C).NO.19923 OF 2011 3 Prosecutor and the Special Public Prosecutor.
4. The counsel for the petitioner submitted that by virtue of Article 226(2) of the Constitution, this court has got jurisdiction to quash the proceedings pending before another court outside the jurisdiction of this court, if it is satisfied that no part of the cause of action had taken place within the jurisdiction of that court. According to the counsel, the entire transaction had taken place within the jurisdiction of Ernakulam court and no part of the transaction had taken place within the jurisdiction of Calcutta court. According to him, this court has jurisdiction to entertain the writ petition to quash the proceedings. He had also relied on the decision reported in Navinchandra N.Majithia v. State of Maharashtra, AIR 2000 SCC 2966 in support of his case.
5. On the other hand, the counsel for the respondents 1 and 2 submitted that since this court has no supervisory jurisdiction over the court where the case is pending, this court cannot entertain the writ petition to W.P.(C).NO.19923 OF 2011 4 quash the proceedings pending before about under the supervision of another High Court. He had relied on the decisions reported in Mosaraf Hossain Khan v. Bageeratha Engineering Ltd. And others, 2006(3) SCC 658, U.B.C. v. Govarthanam, 2005(2) KLT 461, Meenakshi Sathish v. Southern Petrochemical Industries, 2007(1) KLT 890 (FB). Further he had also argued that since the cheque was presented within the jurisdiction of the court where the complaint was filed that court gets jurisdiction to entertain the complaint and as such it cannot be said that no part of the transaction had taken place within the jurisdiction of that court. He had relied on the decision reported in Nishant Aggarwal v.Kailash Kumar Sharma, 2013(3) KLT 231 (SC) in support of the above submission. The learned Special Public Prosecutor supported the submission of the counsel for respondents 1 and 2.
6. It is an admitted fact that the vehicle transaction had taken place from Kochi. It is also in a way W.P.(C).NO.19923 OF 2011 5 admitted by the petitioner that a blank signed cheque has been given as security for the transaction. But whether that is sufficient to attract offence under Sec.138 of the Act or not is a matter to be considered by that court. It is true that in the complaint, it was not mentioned regarding the places from where the causes of action have accrued for filing the complaint. But reading of a complaint along with the documents produced along with a complaint will go to show that the cheque was presented in a Bank at Calcutta and it was dishonoured from there and notice was also issued from there.
7. Article 226 of Constitution of India reads as follows:-
"226. Power of High Courts to issue certain writs:- (1) Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including (writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and or any other purpose) (2) The power conferred by clause(1) to issue directions, orders or W.P.(C).NO.19923 OF 2011 6 writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
(3) Where any party against whom an interim order, whether by way of injunction or stay in any other manner, is made on,or in any proceedings relating to, a petition under clause(1),without-
(a)furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.
4. The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of Article 32.
8. By virtue of Article 226(2) of the Constitution of India, a wider discretion was given to the High Court, if any part of the cause of action whether wholly or in part W.P.(C).NO.19923 OF 2011 7 had taken place within the jurisdiction of that court and it is likely to be enforced within the jurisdiction of that court, to exercise the power under Art.226(1) of Constitution to that court. The dictum laid down in the decision in Navinchandra N.Majithia's case (supra) is not applicable to the facts of the case. That was case where the First Information Report was registered within the Police Station where no part of the transaction had taken place. Under such circumstances, the Honourable Supreme Court invoking the power under Article 32 and explaining the scope of Article 226 of the Constitution, transferred the case to the Police Station within whose jurisdiction the incident has happened.
9. The similar question regarding the jurisdiction of the High Court to quash the proceedings pending before another court within the jurisdiction of another High Court was considered by this Court in the decision reported in U.B.C. v. Govarthanam's case (supra) and held that it is not proper for the High Court of Kerala to W.P.(C).NO.19923 OF 2011 8 entertain writ petition to quash proceedings of a subordinate court under the superintendence of another High Court and observed as follows.
"It is not proper for this Court to exercise the discretionary jurisdiction under Article 226 of the Constitution of India to call for the records and examine the legality or otherwise of the proceedings of a subordinate Court under the superintendence of another High Court under Art.227 of the Constitution. In our view, the parties involved in the case pending before the Criminal Court at Erode can more appropriately invoke the jurisdiction of the High Court of Madras either under Art.226 or under Art.227 or under both the Articles. In the very nature of the jurisdiction conferred on the High Courts by the aforesaid provisions of the Constitution, the self same proceedings of a subordinate Court can become the subject matter of two or more proceedings; one filed before the High Court having jurisdiction under Cl.(2) of Art.226 seeking to quash the lower court proceedings on the plea that the cause of action, wholly or in part, arose within the territorial jurisdiction of that High Court and the other filed before the High Court within whose jurisdiction the seat of the subordinate Court is situate and thus having jurisdiction under Cl.(1) of Art.226 as also under Art.227 of the Constitution. It is possible that in a wide range of disputes, parties may seek reliefs in respect of the very same subject matter between the same parties, invoking Art.226 or/and 227 of the Constitution. It is sound thinking that neither the provisions of the Constitution nor the laws intend that two or more courts, though having concurrent jurisdiction, shall take cognizance of disputes between the same parties in regard to the same subject matter, hold parallel proceedings and render verdicts touching the W.P.(C).NO.19923 OF 2011 9 merits of the issues to resolve the dispute. However, such an undesirable result is likely to emerge if this Court proceeds to entertain the Writ Petition seeking to quash under Art.226 the proceedings of the Criminal Court at Erode over which the High court of Madras is competent to exercise the power under Article 226 and 227 of the Constitution. Added to the above jurisdictional factors, the High Court competent to exercise the power conferred under S.482 of Crl.P.C and to quash the proceedings of the Criminal Court at Erode so as to prevent failure of justice or abuse of the process of that subordinate Court, is the High Court of Madras. If the subordinate Court commits jurisdictional errors, the High Court having the power of superintendence can step in and exercise the supervisory jurisdiction under Art.227 appropriately. It is settled law that interference under Art.227(1) can be suo motu as well. Notwithstanding the forum chosen by the aggrieved party to challenge the proceedings of the subordinate Court, the High Court having the power of superintendence can suo motu exercise its power under Art.227 of the Constitution. Therefore, even in a case where the cause of action has arisen wholly within the territorial limits of another High Court, the High Court having the power of superintendence over that subordinate Court which has initiated proceedings or taken cognizance or otherwise proceeds with, in respect of a matter the cause of action of which has arisen within the jurisdiction of another Court can exercise the power to issue writs under Art.226(1) as also the power of superintendence under Art.227 and undo or set right the illegality. Therefore, among the two High Courts mentioned above, the High Court which is more appropriate would be the one within whose jurisdictional limits the particular subordinate Court is situate so that the powers conferred under Arts.226 and 227 of the Constitution of India as also the W.P.(C).NO.19923 OF 2011 10 power under S.482 Crl.P.C can be exercised, as situation demands. This is the rationale and logical basis for us to hold that the Writ Petition filed to quash the proceedings of the Criminal Court at Erode need not be entertained by this Court."
10. In the decision reported in Mosaraf Hossain Khan's case (supra), the Honourable Supreme Court has held as follows.
"In a criminal matter also the High Court may exercise its extraordinary writ jurisdiction but interference with an order of the Magistrate taking cognisance under Sec.190 CrPC will stand somewhat on a different footing as an order taking cognisance can be the subject-matter of a revisional jurisdiction as well as of an application invoking the inherent jurisdiction of the High Court. A writ of certiorari ordinarily would not be issued by a writ court under Article 226 of the Consitution against a judicial officer. The High Court under Article 226 should not ordinarily interfere with an order taking cognisance passed by a competent court of law except in a proper case. Furthermore only such High Court within whose jurisdiction the order of the subordinate court has been passed, would have the jurisdiction to entertain an application under Article 227 of the Constitution unless it is established that the earlier cause of action arose within the jurisdiction thereof. The High Courts, however, must remind themselves about the doctrine of forum non conveniens also."
11. Further the same question has been considered by the Full Bench of this court in Meenakshi Sathish v. Southern Petrochemical Industries (supra) and W.P.(C).NO.19923 OF 2011 11 observed as follows:
"In view of clause(2) of Article 226, if part of the cause of action arose in the State, writ could be issued against an authority, though the seat of it is outside the territorial jurisdiction of this Court. But, the cause of action which must arise in Kerala for issuing writs of certiorari or prohibition, must relate to the commissions or omissions of an inferior court or Tribunal amenable to the writ jurisdiction of this Court and not that of a private party. This Court cannot judicially review the actions of the 1st respondent. It may file any complaint before any court. It may do it rightly or wrongly. The 1st respondent being a private party not amenable to the writ jurisdiction of this Court, we cannot judicially review its actions. But, the point to be decided is whether we can judicially review the action of the Magistrate in taking cognizance under S.190(1)(a) read with S.200 of the Cr.P.C of the offence alleged against the petitioner and issuing process under S.204. The entire cause of action, as far as the action of the learned Magistrate is concerned, arose in Coimbatore, outside the jurisdiction of this Court. So, even if the complainant has wrongly filed a complaint before the Coimbatore court, the action of taking cognizance and issuance of he process took place outside the jurisdiction of this Court. Therefore, we have no doubt in our mind that the reliefs sought in this Writ Petition cannot be granted by this Court. Even if the cause of action for the complaint under S.138 of the Negotiable Instruments Act arose in Kerala, the Kerala High Court cannot interfere with the proceedings before a criminal court, outside the jurisdiction of this Court.
So, in view of the above dictum laid down in the decision cited supra, it is not proper on part of this court to exercise jurisdiction under Article 226(2) of the W.P.(C).NO.19923 OF 2011 12 Constitution of India to quash the proceedings which was taken cognizance on the basis of an order passed by a competent Magistrate and pending within the jurisdiction and the superintendence of another High Court.
12. Further in the decision reported in Nishant Agarwal v. Kailash Kumar Sharma, 2013(3)KLT 231, the Honourable Supreme Court has held that the court where the cheque is deposited for collection would have territorial jurisdiction to try the accused for the offence under Section 138 of N.I Act. In view of the above dictum, it cannot be said that no part of the cause of action had arisen within the jurisdiction of Calcutta Metropolitan Magistrate Court, so as to enable that Magistrate to entertain the complaint under Section 138 of the Act against the petitioner. In view of the discussions made above, the writ petition filed by the petitioner to quash Ext.P2 proceedings pending before 17th Metropolitan Magistrate, Calcutta is not maintainable before this court and the petitioner is not entitled to get the relief claimed in the petition and the same is liable to W.P.(C).NO.19923 OF 2011 13 be dismissed.
In the result, the petition is dismissed. It is made clear that this will not be a bar for the petitioner to raise all his contentions available to him before that court, where the case is now pending.
Sd/- K.RAMAKRISHNAN, Judge True Copy P.A to Judge lsn