IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 1ST APRIL 2008 / 12TH CHAITHRA 1930 CRL.A.No.15 of 2008 (B) ----------------------------- ORDER IN CRL.L.P.1292/2007 Dated 19/12/2007 CRA.552/2006 of ADDL.SESSIONS COURT (ADHOC)-II, KOTTAYAM (CC.1137/04) .................... APPELLANT: COMPLAINANT -------------------------------- P.N.PURUSHOTHAMAN, OZHUKAYIL KAROTTU, PEROOR P.O., ETTUMANOOR, KOTTAYAM DISTRICT. BY ADV. SRI.JOBI JOSE KONDODY RESPONDENTS: STATE AND ACCUSED -------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. V.GOPI, S/O VELUTHA, SWAPNAVILASOM, PERINAGADU P.O., ADOOR, PATHANAMTHITTA DISTRICT. BY ADV. SRI. K.SHAJ SRI.B.BALRAJ SRI.SAJJU.S PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.15 of 2008 ------------------------------------------------ Dated this the 1st day of April, 2008 JUDGMENT The complainant in C.C.1137/04 on the file of the Judicial First Class Magistrate's Court-II (Mobile), Kottayam is the appellant. He challenges in this appeal the acquittal of the second respondent of offence punishable under Section 138 of the N.I. Act vide judgment passed by the first appellate court in Criminal Appeal No.552/06 in reversal of the judgment of conviction and sentence passed by the Magistrate in C.C.1137/04. 2. The first appellate court acquitted the second respondent holding that the trial of offence by the learned Magistrate namely the Judicial First Class Magistrate-II (Mobile), Kottayam was without jurisdiction and the conviction and sentence therefore is vitiated in view of Section 461(l) of the Cr.P.C. Crl. Appeal No.15 of 2008 -2- 3. The finding that the learned Magistrate was not having jurisdiction was entered into by the first appellate court on the basis of the decision of this Court in Ahammedkutty Haji v. State of Kerala (2007(1) KLT 68). The decision of this Court in Ahammedkutty Haji's case is one rendered without following the decision of the Apex Court in Bhaskaran v. Balan (1999(3) KLT 440). In the light of the decision of the Apex Court, the decision of this Court was not to be followed especially when there was specific finding in the decision rendered by the Apex Court to the effect that the place from where notice was issued in writing to the drawer of the cheque demanding payment of the cheque amount also is a place where part of cause of action arises. Hence, the finding of the first appellate court that the trial court was not having jurisdiction for the reason that it is only giving of notice in writing to the drawer of the cheque demanding payment of Crl. Appeal No.15 of 2008 -3- the cheque amount that has taken place within the territorial jurisdiction of the Magistrate and therefore, there is no jurisdiction for the Magistrate to take cognizance of the offence is incorrect and deserves to be set aside. Further, it is also worthy to note that the learned Magistrate had tried and disposed of the case on merits. Objection to territorial jurisdiction is a contention that has to be raised at the earliest point of time and not after conviction is entered into by the Magistrate who tried the offence without any objection raised by the accused as regards its jurisdiction. Further, it is worthy to note that under Section 462 of the Cr.P.C the finding sentence or order of any criminal court cannot be set aside merely on the ground that the enquiry or trial has taken place in a wrong sessions division, district, sub- division or other local area unless it appears that such error has in fact occasioned a Crl. Appeal No.15 of 2008 -4- failure of justice. Even the counsel for the second respondent has no case that failure of justice has occasioned by reason of trial having taken place in the court of the Judicial First Class Magistrate-II (Mobile), Kottayam. For all the above reasons the judgment of the first appellate court deserves to be set aside. 4. All the same, it is argued by the counsel for the second respondent that the first appellate court has not considered the case on merits and it is only based on decision in Ahammedkutty's case (cited supra) that the lower appellate court reversed the conviction and sentence entered into by the Magistrate and acquitted the second respondent and that therefore, the appeal filed before the first appellate court deserves consideration on merits at the hands of the first appellate court. The submission made by the counsel for the second respondent is sound and has to be Crl. Appeal No.15 of 2008 -5- accepted. The appellant also has no grievance on that count. 5. In the result, I set aside the judgment of the lower appellate court in Crl. Appeal No.552/06 assailed in this appeal and remit the case back to the lower appellate court for consideration of the appeal on merits. The parties or their counsel shall appear before the lower appellate court positively on 22/05/08 and the appellate court shall dispose of the appeal positively within one month from the said date. 6. This appeal is thus allowed by way of remand. K.P.BALACHANDRAN, JUDGE kns/-