IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.HARILAL SATURDAY, THE 19TH NOVEMBER 2011 / 28TH KARTHIKA 1933 Crl.MC.No. 508 of 2006() ------------------------ CC.1038/2005 of JUDL.MAGISTRATE OF FIRST CLASS, MAVELIKKARA .................... PETITIONER(S): COMPLAINANT. --------------------------- M.SUBAIRKUTTY, THEYYIL VILAYIL VEEDU, MANAPPALLY NORTH P.O. KARUNAGAPPALLY, KOLLAM, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER MAITHEEN KUNJU, THEYYIL VILAYIL VEEDU, MANAPPALLY NORTH P.O. KARUNAGAPPALLY, KOLLAM. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SMT.SREELEKHA PUTHALATH SRI.A.R.DILEEP RESPONDENT(S): STATE AND ACCUSED. --------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. NISSAR @ NISSAMUDHEEN, VALUTHUNDIL VEEDU, PULIMUKKU, KUNNIKODU, KOLLAM. BY PUBLIC PROSECUTOR SRI.DHANESH MATHEW MANJOORAN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 508 of 2006() APPENDIX PETITIONER'S ANNEXURES: ANNEXURE I : COPY OF THE COMPLAINT IN C.C.NO.1038/2005 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT, MAVELIKKARA. ANNEXURE II: COPY OF THE ORDER DTD.2.1.2006 IN C.C.NO.1038/2005 ANNEXURE III: COPY OF THE AFFIDAVIT SWORN TO BY THE COUNSEL FOR THE APPELLANT TESTIFYING THE PRESENTATION OF COMPLAINT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KARUNAGAPPALLY ON 31.1.2006. RESPONDENT'S ANNEXURES: NIL //TRUE COPY// P.A TO JUDGE ab K.HARILAL, J ------------------------------------------------- Crl.M.C. No.508 of 2006 -------------------------------------------------- Dated this the 19th day of November, 2011 O R D E R The petitioner is the complainant in C.C.No.1038/2005 on the file of the Judicial First Class Magistrate Court, Mavelikkara, a private complaint filed against the 2nd respondent, alleging commission of the offence punishable under Section 138 of the Negotiable Instruments Act. The complaint was taken on file and process was issued to the 2nd respondent. The complaint was numbered as C.C.No.1038/2005 also. A copy of the complaint is produced before this Court as Annexure 1. 2. When the case was posted for appearance of the accused, the learned Magistrate without considering the facts alleged in the complaint constituting the jurisdiction in a case instituted under Section 138 of the Negotiable Instruments Act, returned the complaint back for presentation before the proper court on or before 31.1.2006, on a finding that the transaction has not taken place within the jurisdiction of the Judicial First Class Magistrate Court, Mavelikkara. The order is produced and marked as Annexure II. Pursuant to Annexure II the complaint Crl.M.C. No.508 of 2006 2 was presented before the Judicial First Class Magistrate Court, Karunagapally within the time as directed by the Judicial First Class Magistrate Court, Mavelikkara. 3. The grievance of the petitioner is that the Judicial First Class Magistrate Court, Karunagapally refused to accept the complaint and returned it. The counsel for the complainant along with the complainant appeared before the Magistrate Court, Karunagapally and the counsel made a submission to receive the complaint. But the same was not received by the Magistrate and to establish the presentation of the complaint, he has filed an affidavit stating presentation of the complaint before the Judicial First Class Magistrate Court, Karunagapally on 31.1.2006 and the same is produced as Annexure III. 4. The counsel for the petitioner Sri.George Varghese Perumpallikuttiyil submits that the Judicial First Class Magistrate Court at Karunagappally refused to receive the complaint without application of mind on the pleadings in the complaint. The counsel further submits that the accused has drawn the cheque and issued at the residence of the complainant at Karunagapally, within the jurisdiction of the Magistrate Court, Karunagapally. The learned counsel for the petitioner cited Crl.M.C. No.508 of 2006 3 decisions in Bhaskaran V. Sankaran Vaidhyan Balan & another (AIR 1999 SC 3762), Ahammedkutty Haji V. State of Kerala (2007(1) KLT 68) and Harman Electronics (P) Ltd. V National Panasonic India (P) Ltd. [2009(2) KLT 113 (SC)]. In view of the submissions made by the learned counsel and the decisions cited, the question to be considered is whether the Judicial First Class Magistrate Court, Karunagapaly has territorial jurisdiction to entertain the complaint filed by the petitioner. Going by the Annexure I complaint it could be seen that the petitioner has specifically stated that the cheque No.239263 dtd.15.6.2005 for an amount of Rs.1,00,000/- has been drawn and issued by the accused to the complainant at his residence in Karunagapaly, within the jurisdiction of the Judicial First Class Magistrate Court, Karunagapaly. In view of the said pleadings, I hold that a part of the cause of action has arisen within the jurisdiction of the Judicial First Class Magistrate Court, Karunagapaly. In Bhaskaran V. Sankaran Vaidhyan Balan & another (AIR 1999 SC 3762) the Apex Court after considering the question of territorial jurisdiction held that the courts, within whose jurisdiction five events mentioned below occurred during the course of transaction, have jurisdiction to Crl.M.C. No.508 of 2006 4 try the complaint. i) Drawing of the cheque. ii) Presentation of the cheque to the bank. iii) Returning the cheque unpaid by the drawee bank. iv) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount. v) Failure of the drawer to make payment within 15 days of the receipt of the notice. 5. The Supreme Court held that the Court within whose jurisdiction the above events occurred has jurisdiction to entertain a complaint filed under Section 138 of the Negotiable Instruments Act. This decision is followed in Ahammedkutty Haji V. State of Kerala (2007(1) KLT 68) and Harman Electronics (P) Ltd. V National Panasonic India (P) Ltd. [2009(2) KLT 113(SC)] also. 6. When applying the principles laid down in the above decisions, I find that the Judicial First Class Magistrate Court, Karunagapaly within whose jurisdiction the cheque has been drawn and issued has territorial jurisdiction to entertain the complaint filed by the petitioner. The Judicial First Class Magistrate Court, Karunagapaly went wrong by refusing the complaint without considering the pleadings in the complaint. Crl.M.C. No.508 of 2006 5 In the result, this Criminal Miscellaneous Case is allowed and the Judicial First Class Magistrate Court, Karunagapaly is directed to receive the complaint to the file and proceed in accordance with law forthwith, on the production of this judgment. The Criminal Miscellaneous Case is allowed. K.HARILAL JUDGE ab