IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 19TH FEBRUARY 2009 / 30TH MAGHA 1930 Crl.MC.No. 326 of 2006(A) ------------------------- CC.3136/2005 of JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM .................... PETITIONER(S): ACCUSED: ----------------------- A.B. ISMAIL, NO.1/65, 7TH STREET, SAI NAGAR, CHINMAYA NAGAR, CHENNAI-600 029. BY ADV. SRI.H.BADARUDDIN RESPONDENT(S): COMPLAINANT& STATE: --------------------------- 1. M/S. ICICI BANK LTD., CREDIT CARD DIVISION, KATTUPURAM, CHENNAI-65, REPRESENTED BY MR.M.G. AJAY, ICICI BANK LTD., ERNAKULAM BRANCH, M.G. ROAD, ERNAKULAM. 2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. AMJATH ALI -R1 SRI.SHAIJAN C.GEORGE FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN CRL. M.A. NO. 3904 OF 2006 IN CRL. M.C. NO. 326 OF 2006. DISMISSED 19.2.2009 Sd/-(C.T. RAVIKUMAR, JUDGE) C.T. RAVIKUMAR, J. -------------------------------------------- CRL. M.C. NO. 326 OF 2006 -------------------------------------------- Dated this the 19th day of February, 2009 O R D E R The Petitioner is the accused in C.C. No. 3136 of 2005 on the file of the Judicial First Class Magistrate’s Court I, Ernakulam. He was given a credit card bearing No.5176530021528008 by the first respondent/complainant. He had issued a cheque bearing No.000545742 dated 8.8.2005 drawn on Indian Bank, North Usman Road Branch, T. Nagar, Chennai for a sum of Rs.10,400/- towards discharge of an outstanding liability arising out of the credit availed by him using the aforesaid credit card. The said cheque was, however, returned unpaid by his banker on 11.8.2005 with the endorsement ‘insufficient funds’. Thereafter, the mandatory prescribed procedures were resorted to by the first respondent . On receipt of the notice under Section 138(b) of the Negotiable Instruments Act, 1881 (hereinafter referred to as “the Act”) the petitioner had drawn a demand draft bearing No. 0328355890 in favour of CRL.M.C. NO. 326/2006 2 the first respondent for an amount of Rs.10,400/- on 15.9.2005 and sent the same to the first respondent on that day itself through Professional Courier. According to the petitioner, the same was received by the first respondent - bank on 16.9.2005 at 11 a.m. as is revealed from Annexure III receipt of Professional Courier bearing No.840175376. In short, the demand draft for the debt amount of Rs.10,400/- was received by the first respondent - bank within 15 days of receipt of notice by the petitioner and hence, according to him, the offence alleged would not lie. 2. The petitioner also contends that the first respondent – bank clandestinely filed Annexure I(a) complaint under Section 138 of the Act before the Judicial First Class Magistrate’s Court I, Ernakulam and caused issuance of summons requiring him to be present before the said court on 7.11.2005. The petitioner contended that he could not attend the court on account of illness and had filed the necessary application to condone his absence and the case was thereupon adjourned to 11.11.2005. On that day also, he filed a similar application along with a medical certificate for adjourning the case. However, the court below rejected the same. Subsequently, the petitioner filed Annexure V application dated 11.11.2005 under Section 258 Cr.P.C. praying for discharging him in the said case. According to the petitioner, he had specifically stated in CRL.M.C. NO. 326/2006 3 Annexure V application that the first respondent – bank had received the debt amount of Rs.10,400/- within the statutory prescribed period of 15 days from the date of receipt of notice and, therefore, the first respondent – bank should not have initiated proceedings for prosecuting him for the offence punishable under Section 138 of the Act. The grievance of the petitioner is that Annexure V application has not been taken up by the court below for consideration despite production of documents evidencing payment of the debt amount of Rs.10,400/-. It is in the said circumstances that the petitioner has approached this Court and filed the above Crl.M.C. 3. The Crl.M.C. was admitted by this Court on 24.5.2006 and notice was issued to the first respondent – bank. All further proceedings in C.C. No.3136 of 2005 on the file of the Judicial First Class Magistrate’s Court I, Ernakulam was stayed by this Court as per interim order dated 27.7.2006. The petitioner seeks to quash the proceedings in C.C. No.3136 of 2005 mainly on two grounds: Firstly, according to the petitioner, the Judicial First Class Magistrate’s Court I, Ernakulam lacks territorial jurisdiction to entertain the case as the entire transactions pertaining to the case had stared and concluded at Chennai in Tamil Nadu. Secondly, he contended that since the debt amount of Rs.10,400/- was paid off within the statutory permissible period of 15 days from the date of receipt of CRL.M.C. NO. 326/2006 4 notice under Section 138(b) of the Act, no offence under Section 138 of the Act would lie against the petitioner. According to him, the said prescribed period expired only on 18.9.2005. 4. The first respondent, however, refuted the contentions of the petitioner. With respect to the first objection raised by the petitioner regarding want of territorial jurisdiction, the first respondent submitted that the petitioner is not entitled to raise the said objection in view of the decision of the Honourable Apex Court reported in Bhaskaran v. Balan 1999(3) K.L.T. 440 (SC). Paragraphs 14 and 16 of the said judgment read thus: “14. The offence under S.138 of the Act can be completed only with the concatenation of a number of acts. Following are the acts which are components of the said offence: (1) Drawing of the cheque, (2) Presentation of the cheque to the bank, (3) Returning the cheque unpaid by the drawee bank, (4) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (5) Failure of the drawer to make payment within 15 days of the receipt of the notice. 16. Thus it is clear, 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 can become the place of trial for CRL.M.C. NO. 326/2006 5 the offence under S. 138 of the Act. In other words, the complainant can choose any one of those courts having jurisdiction or any one of the local areas within the territorial limits of which any one of those five acts was done. As the amplitude stands as widened and so expansive it is an idle exercise to raise jurisdictional question regarding the offence under S.138 of the Act.” In the decision reported in Shamshad Begum v. B. Mohammed 2009(1) K.L.D. 209 (SC), the same view has been reaffirmed by the Honourable Apex Court. When confronted with these judgments, learned counsel for the petitioner admits that he is not legally entitled to raise the question of territorial jurisdiction in the above case. Accordingly, I hold that the Judicial First Class Magistrate’s Court, I, Ernakulam wherein C.C. No.3136 of 005 is now pending has territorial jurisdiction to entertain the said case. 5. As stated earlier, the case of the petitioner is that he has paid off the debt amount of Rs.10,400/- within the statutorily permissible period of 15 days from the date of receipt of notice under Section 138(b) of the Act. However, the first respondent – bank refuted the same. In paragraph 5 of Annexure I(a) complaint, it has been specifically alleged that the petitioner – accused received notice on 2.9.2005 and that he did not effect CRL.M.C. NO. 326/2006 6 payment against the cheque till the date of filing of the complaint (5.10.2005) or sent any reply within the stipulated time of 15 days from the date of receipt of the notice. Suffice it to say that it is a disputed fact and the said issue can be decided only on obtaining sufficient factual matrix. It be so, I cannot uphold the contention of the petitioner that all proceedings in C.C.No. 3136 of 2005 on the file of the Judicial First Class Magistrate’s Court I, Ernakulam is liable to be quashed by exercising the inherent power under Section 482 of the Code of Criminal Procedure. 6. Learned counsel for the petitioner further submits that Annexure-V application dated 11.11.2005 filed by him under Section 258 Cr.P.C. has not so far been taken up for consideration by the trial court. However, it is not stated whether the stage for raising the question of discharge had crossed or not by the time this Court granted interim stay of all further proceedings in C.C. No.3136 of 2005 on 27..7.2006. In the circumstances, the Crl.M.C. is disposed of with a direction to the court below to take up Annexure V application dated 11.11.2005 filed by the petitioner under Section 258 Cr.P.C. in C.C. No. 3136 of 2005 and consider the same, including its very maintainability, provided the stage CRL.M.C. NO. 326/2006 7 for such consideration was not over when interim stay was ordered by this Court on 27.7.2006. In case the said stage is already over and examination of material witnesses have started, it will be open to the petitioner – accused to raise the question of non satisfaction of the ingredients for the offence under Section 138 of the Act in C.C. No.3136 of 2005, at the appropriate stage. (C.T. RAVIKUMAR, JUDGE) sp/ CRL.M.C. NO. 326/2006 8 C.T. RAVIKUMAR, J. CRL. M.C. NO. 326/2006 O R D E R 19th February, 2009 CRL.M.C. NO. 326/2006 9