Dismissed

P.v.Upendran v. Shuhaib T.Mohammed

Kerala HC22 Jun 2009Crl.MC/1966/2009

Case brief

AI extract

What is this about?

In Criminal Misc. Case No. 1966 of 2009, the Kerala High Court dismissed the accused petitioner's plea under Section 482 CrPC to quash the order taking cognizance of a cheque dishonour case. The Court held that since the notice demanding payment was sent from Kasaragod, the First Class Magistrate there had valid territorial jurisdiction.

What did the court decide?

Petition to quash the order dismissing the objection to territorial jurisdiction is dismissed.

P.v.Upendran Vs Shuhaib T.Mohammed — Cheque Dishonour | Kerala HC (2009)

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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 M.SASIDHARAN NAMBIAR

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MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931

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Crl.MC.No. 1966 of 2009 ---------------------------------[CC.NO.372/2006 OF JUDICIAL FIRST CLASS MAGISTRATE II , KASARGOD]

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PETITIONER/ ACCUSED:

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-----------------------------------

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P.V.UPENDRAN, AGED 58 YEARS, RESIDING AT 44 B/6, INDIAN AIRLINES COLONY, KALINA, MUMBAI.

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BY ADV. MR.P.T.JINS.

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RESPONDENTS/ COMPLAINANT:

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-----------------------------------------------

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1. SHUHAIB T.MOHAMED, S/O.T.M.KUNHI, AGED ABOUT 39, IMAN COTTAGE, P.O.MOGRAL, KUMBLA, KASARAGOD DISTRICT.

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2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.

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R2 BY PUBLIC PROSECUTOR MR. GIKKU JACOB.

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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prv.

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M.SASIDHARAN NAMBIAR, J.

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================== Crl.M.C. No. 1966 of 2009

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==================

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Dated this the 22^nd day of June, 2009.

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O R D E R

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Petitioner is the accused in C.C.No.372/2006 on the file of Judicial First Class Magistrate Court-II, Kasaragod, which was taken cognizance by the learned Magistrate for an offence under Section 138 of Negotiable Instruments Act on Annexure A complaint filed by the first respondent. Petitioner filed Annexure E petition for hearing the preliminary issue regarding territorial jurisdiction contending that petitioner has no acquaintance with first respondent and he did not issue the dishonoured cheque and he is a resident of Mumbai and no part of the cause of action has arisen within the jurisdiction of Judicial First Class Magistrate Court, Kasaragod and therefore that Court has no jurisdiction to try the case. Under Annexure F order, learned Magistrate dismissed the petition. This petition is filed under Section 482 of Code of Criminal Procedure for quashing the order.

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Crl.M.C.No.1966/2009

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-2-

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Learned Counsel appearing for the petitioner was

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heard.

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Learned Counsel argued that Annexure A complaint does not show how the complaint is maintainable at Kasaragod when the cheque was issued from an account maintained at Mumbai and dishonoured at Mumbai and petitioner is a resident of Mumbai and therefore the Magistrate should not have taken cognizance of the offence. It was also argued that though learned Magistrate relied on the decision of the Apex Court in Harman Electronics (P) Ltd. v. National Panasonic India (P) Ltd. (2009 (2) KLT 113 SC), relying on a three Judge Bench decision of the Apex Court in Ishar Alloy Steels Ltd. v. Jayaswants Neco Ltd. (2001 (2) KLT 148 (SC)) when dishonour of the cheque is by a Bank at Mumbai for the reason that cheque was presented for encashment by the payee through a bank at Kasaragod, that court will not get jurisdiction to take cognizance of the offence treating it as part of cause of action which has arisen within Kasaragod. Learned Counsel

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Crl.M.C.No.1966/2009

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-3-

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argued that as the subsequent decision relied on by the learned Magistrate in Harman Electronics (P) Ltd. v. National Panasonic India (P) Ltd. (2009 (2) KLT 113 SC) is by a two Judge Bench, the earlier decision will prevail and therefore the order is not sustainable. The learned Counsel further submitted that as the complaint does not disclose which part of the cause of action has arisen at Kasaragod, the Magistrate should not have taken cognizance and therefore Annexure F order is to be quashed.

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As declared by the Apex Court in Bhaskaran v. Sankaran Vaidhyan Balan (1999 (1) KLT 440), the cause of action for an offence under Section 138 of Negotiable Instruments Act has the following components:-

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(1) Drawing of the cheque;

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(2) Presentation of the cheque to the bank;

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(3) Returning the cheque unpaid by the drawee bank;

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(4) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount;

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(5) Failure of the drawer to make payment within 15 days of the receipt of the notice.

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Crl.M.C.No.1966/2009

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-4-

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If any one of these five components have taken place within the jurisdiction of Judicial First Magistrate Court, Kasaragod, it has definitely jurisdiction. When information regarding dishonour of the cheque is received by the payee, he has to send a notice in writing demanding the amount covered by the dishonoured cheque. The offence under Section 138 of Negotiable Instruments Act would be completed only when the drawer of the cheque fails to pay the amount within 15 days of receipt of the notice. The complainant has to send the notice under Section 138(b) in writing. That notice can be send only from the place where he resides or works. Neither the Negotiable Instruments Act nor any other statute provides that notice is to be send only from the place where the accused resides or the cheque was dishonoured. A payee is definitely entitled to demand the amount covered by the dishonoured cheque in writing from the place where he works or resides. When giving a notice in writing to the drawee of the cheque, demanding the cheque amount is one of the five

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Crl.M.C.No.1966/2009

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-5-

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components constituting the cause of action and first respondent is admittedly residing within the jurisdiction of Judicial First Class Magistrate Court, Kasaragod and notice demanding the amount covered by the dishonoured cheque was sent from Kasaragod, the learned Magistrate has definitely territorial jurisdiction to take cognizance of the offences and to try it. In such circumstances, I do not find any reason to interfere with Annexure F order. Petition is dismissed.

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M.SASIDHARAN NAMBIAR JUDGE

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dkr

P.v.Upendran v. Shuhaib T.Mohammed

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P.v.Upendran v. Shuhaib T.Mohammed

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