IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 12TH JANUARY 2011 / 22ND POUSHA 1932 Crl.MC.No. 3952 of 2010() ------------------------- AGAINST THE ORDER IN RC.350/07 IN CC.1294/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KUNNAMKULAM. .................... PETITIONER(S): ---------------------- ICICI BANK LTD., EMGEE SQUARE, MG ROAD, ERNAKULAM REPRESENTED BY ITS LEGAL MANAGER ROHIT CHENGALATH. BY ADVS. SRI.LAL K.JOSEPH SRI.A.A.ZIYAD RAHMAN SRI.V.R.REKESH RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REP.BY GOVERNMENT PLEADER, HIGH COURT OF KERALA, ERNAKULAM. 2. C.M.MATHEW THAMPI, NEHRU NAGAR, IVTH AVENUE, KUNNAMKULAM-680 503. 3. S.I.OF POLICE, KUNNAMKULAM POLICE STATION, THRISSUR DISTRICT. R1 & R3 BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA R2 BY ADV. SRI.C.PRABIN BENNY THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.3952 of 2010 --------------------------------------- Dated this 12th day of January, 2011 ORDER Petitioner is the ICICI Bank Limited, represented by its Legal Manager challenging Annexure-A3, protest complaint preferred by respondent No.2 against it and its officers. Respondent No.2 has an account with the Thrissur branch of petitioner. On 07.11.2006 respondent No.2 claimed to have deposited cheque issued to him by M/s.Reliance Life Insurance Company having its account at Chennai. That cheque was deposited in the account of respondent No.2 at the Thrissur branch of petitioner the same day. In the account of respondent No.2, petitioner made entry that on 07.11.2006 the cheque amount of `.1,36,437.53/- was credited in the account and the same was reversed the same day and that resulted in dishonour of the cheques issued b respondent No.2. The said amount was again credited in the account of respondent No.2 on 15.11.2006. Alleging that during the period between 07.11.2006 and 15.11.2006 the said amount was misappropriated by petitioner, respondent No.2 filed Annexure-A1, Crl.M.P.No.1455 of 2007 in the court of learned Judicial First Class Magistrate, Crl.M.C.No.3952 of 2010 -: 2 :- Kunnamkulam. That complaint was forwarded to the Kunnamkulam Police for investigation under 156(3) of the Code of Criminal Procedure (for short, “the Code”). Kunnamkulam police submitted Annexure-A2, report before the learned Magistrate stating that the alleged offence has taken place at Thrissur where the branch of petitioner is situated and hence the proceedings are dropped. On that report learned Magistrate issued notice to respondent No.2 (R.C.350 of 2007 dated 29.11.2007). Respondent No.2 filed Annexure-A3, protest complaint for the same offence for which learned Magistrate has taken cognizance. That was followed by Annexure-A4, notice to the Manager of petitioner. Learned counsel for petitioner submitted that cognizance has been taken as per Annexure-A6, order without proper application of mind as is revealed from Annexure-A4 itself. At any rate, it is contended that learned Magistrate had no jurisdiction to take cognizance since the alleged offence occurred at Thrissur in which case learned Magistrate ought to have returned the complaint for further steps. Learned counsel for respondent No.2 contends that materials on record revealed that the amount was credited in the account of respondent No.2 on 07.11.2006, on the same day it Crl.M.C.No.3952 of 2010 -: 3 :- was reversed and the amount was credited only on 15.11.2006 which shows that there is misappropriation of the amount involved. So far as Annexure-A6, order is concerned, it is seen from Annexure-A6, order that cognizance is taken only for offence punishable under Sec.409 of the Penal Code. Notwithstanding Annexure-A2, report learned Magistrate has not gone into the question whether he has jurisdiction to entertain the complaint. It is also seen from Annexure-A6, order that learned Magistrate has not given serious consideration to the issue whether Sec.409 of the Code is made out. But I do not venture to go into the question whether offence under Sec.409 of the Code is made out in view of the order I propose to pass in this case. 2. No doubt, even if cognizance was taken it is within the power of the Magistrate to return the complaint for re-presentation in the proper court. On Annexure-A2, report learned Magistrate ought to have considered the question whether he has jurisdiction to entertain the petition. That being not done by the learned Magistrate, I am inclined to interfere with Annexure-A6, order. Crl.M.C.No.3952 of 2010 -: 4 :- Resultantly this petition is allowed and Annexure-A6, order is set aside. Annexure-A3, complaint is remitted to the court of learned Judicial First Class Magistrate, Kunnamkulam for fresh consideration and decision. Learned Magistrate shall consider whether he has jurisdiction to entertain the complaint and in case it is found in favour, consider whether any offence alleged is made out. If he has no jurisdiction to entertain the complaint, it is needless to say that the procedure provided under Sec.201 of the Code shall be followed. Respondent No.2 shall appear in the court below on 28.01.2011. (THOMAS P JOSEPH, JUDGE) Sbna/-