Dismissed

Suku v. Jagdish

Kerala HC15 Jun 2011Crl.MC/514/2011

Case brief

AI extract

What is this about?

The High Court dismissed criminal miscellaneous petitions challenging a Magistrate's order returning a Section 138 complaint. The court held that the mere fact the collecting bank is within its local limits does not confer territorial jurisdiction, binding itself to the precedent in Thressiamma v. State of Kerala.

What did the court decide?

Criminal miscellaneous cases dismissed; Magistrate's order upholding lack of jurisdiction affirmed.

Suku Vs Jagdish — Cheque Dishonour | Kerala HC (2011)

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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 THOMAS P.JOSEPH WEDNESDAY, THE 15TH JUNE 2011 / 25TH JYAISHTA 1933

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Crl.MC.No. 514 of 2011()

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-----------------------CMP.7929/2010 of JUDL.MAGISTRATE OF FIRST CLASS, KAYAMKULAM

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PETITIONER(S): COMPLAINANT:

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

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SUKU,S/O.JAYADEVAN,BIJU BHAVAN, PUTHUPPALLY NORTH,PUTHUPPALLY VILLAGE, KAYAMKULAM.

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BY ADV. SRI.S.MOHANAN

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RESPONDENT(S): ACCUSED AND STATE:

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

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1. JAGDISH,S/O.DEVARAY NAYAK,NEHRU NAGAR, NELLIKKERI,KUMTA PO,KARNATAKA,PIN-581 343.

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

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R2 BY PUBLIC PROSECUTOR SRI. JAYASURYA

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

Kss

CRMC.NO.514/2011

APPENDIX

PETITIONER'S ANNEXURES:

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ANNEX.A1: COPY OF THE COMPLAINT CMP NO.7929/2010 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KAYAMKULAM.

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ANNEX.A2: COPY OF THE ORDFER DTD. 21/12/2010 IN CMP NO.7929/2010 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KAYAMKULAM.

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RESPONDENT'S ANNEXURES: N I L

/TRUE COPY/

P.A.TO JUDGE

Kss

THOMAS P. JOSEPH, J.

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-------------------------------------Crl.M.C. Nos. 514 & 1653 of 2011 -------------------------------------Dated this the 15^th day of June, 2011.

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ORDER

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Since common questions of law and facts are raised in these proceedings the same are being disposed of jointly.

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Crl.M.C.No.514 of 2011 arises from Annexure-2 , order dated December 21, 2010 on C.M.P.No.7929 of 2010 of learned Judicial First Class Magistrate, Kayamkulam. That complaint was preferred by petitioner for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”) on the strength of a cheque (allegedly) issued by the first respondent for `.5,46,103/- and drawn on Syndicate Bank, Gokarnam Branch, Andra Pradesh. Petitioner presented the cheque for collection in his bank at Krishnapuram (within the local limits of Judicial First Class Magistrate, Kayamkulam) and when the collecting bank sent the cheque to the drawee bank it was dishonoured for insufficiency of amount. After complying with the formalities, petitioner preferred the complaint against first respondent before learned Magistrate. Learned Magistrate returned the complaint to be filed before the proper court as he had no territorial jurisdiction to entertain the complaint.

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Crl.M.C.No.1653 of 2011 is in challenge of order dated December 21, 2010 on C.M.P.No.7930 of 2010 of the same court. There also, facts are same. Learned Magistrate vide the impugned order returned the complaint for

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Crl.MC Nos.514 & 1653/2011

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presentation before appropriate court. The said orders are under challenge in these proceedings.

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Learned counsel submitted that the court within whose jurisdiction the collecting bank is situated has also jurisdiction to entertain the complaint. Reliance is placed on the decision in K.Bhaskaran v.

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Sankaran Vaidhyan & another (1999 (3) KLT 440) and Shamshad Begum v. Mohammed (2009 (1) KLT 886) . I have heard learned Public Prosecutor also in this regard.

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Averments in the complaints do not say that the transaction or any part of it was at any place within the local limits of jurisdiction of learned Magistrate. The only allegation intended to confer jurisdiction on learned Judicial First Magistrate, Kayamkulam is that the collecting bank through which the cheques were presented for encashment is situated within the local limits of jurisdiction of the said court. Question is whether that would confer jurisdiction on the learned Magistrate.

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Explaining the decision in K.Bhaskaran v. Sankaran Vaidhyan & another (supra) a learned Judge of this Court in Santhosh Kumar v.

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Mohanan (2008 (3) KLT 461 ) has held that ‘the bank’ referred to in the proviso (a) to Section 138 of the Act is, cannot be the collecting bank of the complainant but, is the drawee bank. True that in Shamshad Begum v. Mohammed (supra), the Supreme Court relied on the decision in K.Bhaskaran

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Crl.MC Nos.514 & 1653/2011

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v. Sankaran Vaidhyan & another (supra). But, as aforesaid this Court has explained the decision in K.Bhaskaran v. Sankaran Vaidhyan & another (supra). It is also relevant to note that Shamshad Begum v. Mohammed (supra) was decided on November 3, 2008. Thereafter, in a decision delivered on December

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12, 2008 ( Harman Electronics (P) Ltd. V. National Panasonic

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India (P) Ltd. - 2009 (2) KLT 113 ) the Supreme Court has held that the place of issue of notice would not by itself give rise to a cause of action (to file a complaint under Section 138 of the Act).

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Learned counsel has invited my attention to the decision in

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Purushothaman v. State of Kerala (2009 (2) KLT 540) where again

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relying on the decision in K.Bhaskaran v. Sankaran Vaidhyan & another (supra) it is held that the place of issue of notice would not give rise to a cause of action. That question does not however arise in these cases since the question is only whether the place where collecting bank is situated would confer jurisdiction on the court. That question was pointedly considered by the Division

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Bench in Thressiamma v. State of Kerala (2010 (4) KLT 598) again

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referring to the decision in K.Bhaskaran v. Sankaran Vaidhyan & another (supra). It is held that presentation of the cheque in the bank of complainant would not give rise to any cause of action. Decision in Santhosh Kumar v. Mohanan (supra) was confirmed. I am bound to follow that decision of Division Bench.

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Crl.MC Nos.514 & 1653/2011

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In view of the above, learned Magistrate is correct in holding that

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he had no jurisdiction to entertain the complaint.

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Criminal Miscellaneous Cases are accordingly dismissed.

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THOMAS P.JOSEPH, Judge.

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cks

Suku v. Jagdish

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Suku v. Jagdish

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