IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 24TH MARCH 2011 / 3RD CHAITHRA 1933 Crl.Rev.Pet.No. 313 of 2008() ----------------------------- CRA.422/2006 of ADDL.SESSIONS COURT, PATHANAMTHITTA CC.73/2004 of CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- SAMUEL GEORGE, AGED 52 YEARS, S/O.GEORGE MALIAKKAL BUNGLOW, ANDOOR P.O., KOTTARAKARA. BY ADV. SRI.ALEXANDER GEORGE SRI.DILIP MOHAN RESPONDENT(S): COMPLAINANT/STATE -------------------------------- 1. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 2. VILASINI BAI N.P., SAKTHIPRIA ELANADU P.O., KOLLAM. PUBLIC PROSECUTOR SRI.V.TEK CHAND SRI.GEORGE SEBASTIAN FOR R2 SRI.EGY.N.ELIAS FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl. R.P. 313 of 2008 * * * * * * * * * * * * * * * * * * Dated: 13-02-2008 REFERENCE ORDER A question of territorial jurisdiction of the Magistrate trying an offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 ( for short “the N.I. Act) comes up for consideration in this case. 2. The ordinary place of trial of a case is to be determined primarily with reference to Sec. 177 Cr.P.C. which reads as follows: “ 177. Ordinary place of inquiry and trial - Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed”. But there may be cases in which the place where the offence was committed may be within the local areas of more than one Court or the offence may comprised of several acts done within the local areas of different courts so as to require elucidation. That is why the legislature has thought it fit to provide for such contingencies as well. Sec. 178 Cr.P.C reads as follows: Crl. R.P. No. 313 of 2008 -:2:- “178. Place of inquiry or trial - (a) When it is uncertain in which of several local areas an offence was committed, or b) where an offence is committed partly in one local area and partly in another, or c) where an offence is a continuing one, and continues to be committed in more local areas than one, or d) where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas”. There may still be cases where the offending act is committed in one place and its consequence takes place at a different situs. This eventuality is also taken care of by Sec. 179 Cr.P.C. Which reads as follows: “179. Offence triable where act is done or consequence ensues - When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by Court within whose local jurisdiction such thing has been done or such consequence has ensued”. 3. An offence punishable under Sec. 138 of the N.I. Act is completed only when all the components thereof are satisfied. Interpreting Sections 177, 178 (d) and 179 Cr.P.C the Apex Court in Bhaskaran v. Balan 1999 (3) KLT 440 (SC) held as follows: “13. The above provisions in the code should have been borne in mind when the question regarding territorial Crl. R.P. No. 313 of 2008 -:3:- jurisdiction of the courts to try the offence was sought to be determined. 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. 15. It is not necessary that all the above five acts should have been perpetrated at the same locality. It is possible that each of those five acts could be done at 5 different localities. But concatenation of all the above five is a sine qua non for the completion of the offence under Sec. 138 of the code. In this context a reference to S. 178 (d) of the Code is useful. It is extracted below: “Where the offence consists of several acts done in different local areas, it may be inquired into or tried by a court having jurisdiction over any of such local areas”. 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 the offence under S. 138 of the Act. In other words, the complainant can choose any one of those courts having jurisdiction over any one of the local areas within the territorial limits of which anyone 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”. Thus, the court within whose local limits the statutory notice under clause (b) of the proviso to Sec. 138 of the N.I. Act was issued will also have jurisdiction to try the offence under the said Act. In other words, it will be perfectly valid for the complainant to choose that court within the local limits of which the statutory notice was issued, for filing his complaint. Of course, if the complainant with a cruel motive, Crl. R.P. No. 313 of 2008 -:4:- so desires, he can very well cause a lawyer notice to be issued from a place where none of the other components for completing the offence had taken place and may then institute the complaint before that Court within the local limits of which the office of the Advocate who issued the lawyer notice is situated. But then, even without approaching an advocate, if the complainant were to send the statutory notice from a far away place, he can still achieve his wicked object if he wants to do so. In that event he also will be equally inconvenienced by choosing a far away court. Merely because a particular provision of law is likely to be misused, courts cannot presume that such a provision is bad. 4. The dictum of the Apex Court in Baskaran's case (supra) is the law laid down by the Supreme Court within the meaning of Art. 141 of the Constitution of India. As per the said law, a complaint under Sec. 138 of the N.I. Act can be filed in any of the five places indicated by the Apex Court and the place from where the statutory notice was issued is one such place. Sub being the law, it is binding on all the courts in this country. However, two learned Judges of this Court have given an interpretation which, I am afraid, runs counter to the law laid down by the Apex Court in Bhaskaran's case. In Harihara Puthra Sharma v. State of Kerala and Others - ILR 2006 (4) Kerala 901, a learned judge of this Court has held that the complainant is not entitled to prosecute the accused before a Crl. R.P. No. 313 of 2008 -:5:- particular court solely for the reason that for sending the statutory notice the complainant had engaged a counsel whose office is situated within the local limits of that Court. Another learned Judge of this Court in Ahammedkutty Haji v. State of Kerala - 2007 (1) KLT 68 has also taken the view that mere sending of notice from the office of a lawyer at a particular place will not confer jurisdiction on the court at the place where the lawyer who demanded the payment has his office. Since the view taken by the learned Judges of this Court is, with due respect, opposed to the law laid down by the Apex court in Bhaskaran's case, I am of the view that the matter require an authoritative pronouncement by a Division Bench for which purpose the file shall be placed before the Hon'ble the Chief Justice for orders. V. RAMKUMAR, (JUDGE) ani.