Allowed

S.v.Thampi v. P.Somasekharan Nair

Kerala HC26 May 2008Crl.MC/91/2008

Case brief

AI extract

What is this about?

Petitioner accused in a Section 138 NI Act case challenged Thiruvananthapuram court's jurisdiction. Court held applicant's main residence and cheque encashment location were at Sulthan Bathery. Under Ahammedkutty Haji, Thiruvananthapuram lacked jurisdiction despite counsel-issued notice. Complaint transferred to Sulthan Bathery court.

What did the court decide?

Direction that C.C.No.709/06 pending before Addl. Chief Judicial Magistrate, Thiruvananthapuram shall be transferred to the court of Judicial First Class Magistrate, Sulthan Bathery.

S.v.Thampi Vs P.Somasekharan Nair — Cheque Dishonour | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE R.BASANT

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MONDAY, THE 26TH MAY 2008 / 5TH JYAISHTA 1930

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Crl.MC.No. 91 of 2008()

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CC.709/2006 of ADDL. CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM

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PETITIONER: ACCUSED:

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S.V.THAMPI, SATHYALAYAM HOUSE,

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VAKERY P.O., SULTHAN BETHERY.

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BY ADV. SRI.S.EASWARAN

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SRI.SHINU J.PILLAI

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SRI.P.MURALEEDHARAN (IRIMPANAM)

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RESPONDENTS: COMPLAINANT & STATE:

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P.SOMASEKHARAN NAIR, S/O.PARAMESWARAN NAIR, MANAGER, M/S.KERALA CHITTY FUND, PAN AFRICAN PLAZA, PULIMOODU, THIRUVANANTHAPURAM.

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STATE REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY PUBLIC PROSECUTOR SRI.K.C.SANTHOSH KUMAR

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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R.BASANT, J.

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Crl.M.C.No.91 of 2008

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Dated this the 26^th day of May 2008

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O R D E R

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The petitioner is an accused in a prosecution under Section 138 of the Negotiable Instruments Act. He hails from Sulthan Bathery. The complainant is the Manager of Kerala Chitty Fund having its head office at Thiruvananthapuram. According to the petitioner, the complainant has initiated proceedings against the petitioner under Section 138 of the Negotiable Instruments Act. The short contention of the petitioner is that the prosecution is not maintainable at Thiruvananthapuram and the same is maintainable only at Sulthan Bathery where all the relevant incidents had taken place. Admittedly, the cheque is drawn on the Bank of the petitioner at Sulthan Bathery. It has been presented for encashment at the complainant's bank at Sulthan Bathery. Notice has been issued to the petitioner at his address at Sulthan Bathery. He had received the same at Sulthan Bathery. Notice of demand was of course issued by a counsel for the complainant at Thiruvananthapuram. An averment has been included in the complaint to show that the cheque was handed

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Crl.M.C.No.91/08

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over at Thiruvananthapuram. It is, in these circumstances, that the complaint has been filed ascertaining that the courts at Thiruvananthapuram have jurisdiction to deal with the matter.

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The learned counsel for the petitioner submits that in the light of the decision in Ahammedkutty Haji v. State of Kerala [2007(1)KLT 68] the mere fact that the notice of demand was issued by the counsel at Thiruvananthapuram cannot confer jurisdiction on the courts at Thiruvananthapuram to try this case. The learned counsel for the petitioner submits that though an empty assertion has been made in paragraph 5 of the complaint that the cheque was handed over at Thiruvananthapuram, the same is without any substance or merit and the totality of the circumstances must eloquently convey that the entire transaction and handing over of the cheque took place only at Sulthan Bathery and not at Thiruvananthapuram. In these circumstances, the counsel submits that the courts at Thiruvananthapuram do not have the jurisdiction to deal with the matter and it is prayed that the complaint may be quashed or may be sent to the court at Sulthan Bathery to proceed further in the matter.

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Crl.M.C.No.91/08

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Notice was served to the respondent. The respondent has not entered appearance. I am satisfied, in the facts and circumstances of this case that the dictum in Ahammedkutty Haji v. State of Kerala [2007(1)KLT 68] would squarely apply and the petitioner's prayer to get the matter decided by the court at Sulthan Bathery is absolutely justified.

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In the result, this petition is allowed in part. There shall be a direction that C.C.No.709/06 pending before the Additional Chief Judicial Magistrate, Thiruvananthapuram shall be transferred to the court of the Judicial First Class Magistrate Court, Sulthan Bathery. The learned Magistrate shall forward the records forthwith to the transferee court. Direction shall be issued to both parties by the learned Magistrate to appear before the Judicial First Class Magistrate Court, Sulthan Bathery on 14/7/2008. Records shall be transferred to that court before that date.

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(R.BASANT, JUDGE)

jsr

Crl.M.C.No.91/08 4

Crl.M.C.No.91/08 5

R.BASANT, J.

CRL.M.CNo.

ORDER

21ST DAY OF MAY2007

S.v.Thampi v. P.Somasekharan Nair

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S.v.Thampi v. P.Somasekharan Nair

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