Allowed

Jisha Joseph v. State of Kerala

Kerala HC8 Aug 2016Crl.Rev.Pet/1822/2009

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the criminal revision petition in a cheque bounce complaint filed under Section 138 of the Negotiable Instruments Act. The Court set aside an order returning the complaint on lack of jurisdiction and directed its re-presentation to the Kanjirappally court, holding that the branch presentation location conferred jurisdiction.

What did the court decide?

The impugned order returning the complaint for lack of jurisdiction is set aside. The complainant is directed to re-present the complaint before the Judicial First Class Magistrate Court, Kanjirappall

Jisha Joseph Vs State of Kerala — Cheque Dishonour | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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MONDAY, THE 8TH DAY OF AUGUST 2016/17TH SRAVANA, 1938

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Crl.Rev.Pet.No. 1822 of 2009 ( )

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AGAINST THE ORDER/JUDGMENT IN CMP 507/2009 of J.M.F.C.-II, KANJIRAPPALLY DATED 21-02-2009

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REVISION PETITIONER(S)/COMPLAINANT:

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JISHA JOSEPH, AGED 27, D/O.K.T.JOSEPH, KUNNEL HOUSE, MUTTAPPALLY P.O., ERUMELY VILLAGE, REPRESENTED BY HER POWER OF ATTORNEY K.T.JOSEPH, AGED 60, KUNNEL HOUSE, MUTTAPPALLY P.O.,, ERUMELY VILLAGE.

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BY ADV. SRI.JOSEKUTTY MATHEW

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RESPONDENT(S)/STATE:

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

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BY PUBLIC PROSECUTOR SMT.P.P.M.G.LISHA

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08-08-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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ANU SIVARAMAN, J.

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----------------------------------------------Crl.R.P.No. 1822 of 2009

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----------------------------------------------Dated this the 8^th August, 2016

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O R D E R

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The complainant in C.M.P.No.507 of 2009 before the Judicial 1^st Class Magistrate-II, Kanjirappally is the revision petitioner. The revision petitioner had filed a complaint under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act'). The allegation in the complaint was to the effect that while she was working as the staff nurse in a hospital in Banglore, she had entrusted Rs.4,00,000/- to the accused believing its promise that they would arrange visa and employment in Switzerland as staff nurse. Since no such arrangements were made, the revision petitioner had demanded the amount back. The 2^nd accused in the complaint, who was the director of the company, had given her a cheque for an amount of Rs.4,00,000/-, which was presented by her through the Federal Bank, Erumely Branch, within the jurisdiction of the Court in which the complaint was filed. The cheque was returned as dishonoured for want of sufficient funds. The complainant had caused a registered demand notice to be issued to the accused from Ponkunnam. It is further stated that the complainant is a permanent resident at Erumely within the jurisdiction of the Court of Judicial 1^st Class Magistrate-II, Kanjirappally. On these allegations, the complaint was preferred before that Court. However,

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Crl.R.P.No.1822/09 2

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by order dated 21.2.2009, the complaint was returned to the complainant for presentation before the Court having jurisdiction within seven days. The said order was passed by the learned Magistrate relying on a decision of this Court in Ahammedkutty Haji v. State of Kerala [2007(1) KLT 68], wherein it was held that mere sending of notice from the office from a lawyer of a particular place does not confer jurisdiction on the Court at that place.

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Heard learned counsel for the revision petitioner and the learned Public Prosecutor.

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Going by the allegations in the complaint, the complainant is a permanent resident of Erumely within the jurisdiction of the Judicial 1^st Class Magistrate Court-II, Kanjirappally. The cheque had been presented through the Erumely Branch of the Federal Bank, which is also within such jurisdiction. More over, the demand notice as contemplated under the Act was also issued from Ponkunnam, which is also within such jurisdiction. The question decided in Ahammedkutty

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Haji's case (supra), was whether the mere fact that a notice of demand happened to be sent from the jurisdiction of a Court without any of other attendant factors being within such jurisdiction would provide jurisdiction for filing of a complaint under Section 138 of the Act. In that case, none of the crucial factors had occurred within the jurisdiction of the Court in question. The only occurrence which was

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Crl.R.P.No.1822/09

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within such jurisdiction was the sending of the notice from the office of a lawyer within such jurisdiction. It was in the above circumstances that this Court held that the mere sending of notice from a particular place does not confirm jurisdiction on the Court.

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The Apex Court in Bhaskaran v. Balan [1999(3) KLT 440(SC)]

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had held that the offence under Section 138 of the Act can be completed only with the concatenation of the following five acts which are the components of the offence:

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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, and

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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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It was stated therein that it is not necessary that the above five acts should have been perpetrated at the same locality. It was therefore held that if the five different acts were done in five different localities, any one of the courts exercising jurisdiction in one of the five local areas would be competent for trial of the offence under Section 138 of the Act. The question regarding the cause of action in an offence under Section 138 of the Act has been discussed in detail by the Apex Court

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in Harman Elecetronics (P) Ltd. v. National Panasonic India (P) Ltd. [2009(2) KLT 113 (SC)].

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Crl.R.P.No.1822/09

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The learned Public Prosecutor would contend that by a later amendment dated 29.12.2015 by Amendment Act 26 of 2015, Section 142 of the Act has been amended with effect from 15.6.2015, providing that if the cheque is delivered for collection through an account, the Court having jurisdiction over the branch of the Bank where the payee maintains account and in other cases, the place where the drawee holds account shall try cases arising under Section 138 of the Act. In the instant case, the offence is of the year 2008. The complaint projects that the cheque was presented for encashment through the Federal Bank, Erumely Branch in which the complainant had an account and she was served with a dishonour memo dated 10.10.2008 on 16.10.2008 through the Bank. In the above circumstances, since the cheque was presented through the payee's Bank within the jurisdiction of the Court at Kanjirappally, I am of the opinion, going by the binding precedents, that the Judicial 1^st Class Magistrate Court, Kanjirappally had the jurisdiction to entertain the complaint preferred by the revision petitioner.

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In the above circumstances, Annexure-3 order is set aside. The complainant is directed to re-present the complaint before the Judicial 1^st Class Magistrate Court, Kanjirappally which shall immediately take up the matter and take further steps in accordance with law. Since the order impugned is dated 21.2.2009 and the matter was pending in this

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Crl.R.P.No.1822/09

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Court from 25.5.2009, the revision petitioner is given two weeks time from today to re-present the complaint before the Court below. On such re-presentation of the complaint, the same shall be taken up and further steps taken in accordance with law by the court below without further delay.

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The Criminal Revision Petition is ordered accordingly.

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ANU SIVARAMAN

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vgs9/8

Jisha Joseph v. State of Kerala

Case brief

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Jisha Joseph v. State of Kerala

Case brief

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What did the court decide?

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