IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 30TH OCTOBER 2009 / 8TH KARTHIKA 1931 Crl.MC.No. 1334 of 2006() ------------------------- CC.195/2006 of CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA .................... PETITIONER(S): ACCUSED ---------------------- P.V.K.UNNI NAIR, `GOKULAM', PALAT ROAD, OTTAPALAM, PALAKKAD DISTRICT. BY ADV. SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. RESPONDENT(S): COMPLAINANT/STATE -------------------------------- 1. GINTO.A.S, S/O.DEVASIA, (NOW CLAIMED TO BE S/O.SEBASTIAN), ARPATHANANTHU HOUSE, DHONI KARA, PUTHUPARIYARAM VILLAGE, PALAKKAD DISTRICT. 2. STATE OF KERALA, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.P.A. SALIM THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------------------- Crl.M.C. No. 1334 of 2006 ----------------------------------------------------- Dated this the 30th day of October, 2009. ORDER This petition is filed to quash Annexure-IV complaint and all further proceedings initiated against petitioner by the Chief Judicial Magistrate Court. 2. A complaint was filed by first respondent against petitioner alleging offence under Section 138 of N.I. Act. According to complainant, petitioner issued a cheque for an amount of Rs.50,000/- for discharge of a debt and the cheque, on presentation, was dishonoured by the bank. Notice was thereafter issued under Section 138(b) of N.I. Act and a reply was also sent. But, petitioner did not pay the money and hence the complaint was filed. 3. Learned counsel for petitioner submitted that complaint is to be quashed since all the ingredients of offence are not stated in the complaint. Under Section 138 of N.I. Act, the complainant has to establish that the [Crl.M.C.1334/06] 2 cheque is returned by the bank unpaid for either of the two reasons stated in section 138. These reasons are:(1) the amount of money standing to the credit of the account is insufficient to honour the cheque and (2) it exceeds the amount arranged to be paid from that account by an agreement made with bank. In the present case, complainant has not stated in the complaint that the cheque was returned for either of the reasons which are stated in Section 138. It is only stated that “cancellation of cheque new cheque issued”. This is not a reason which is relevant for offence under Section 138. Hence, in the light of the decision reported in Rajkumar Khurana v. State (NCP of Delhi) & Another (2009(2) KHC 828), the complaint is liable to be quashed, it is submitted. 4. Learned counsel for petitioner also argued that the court committed a mistake in entertaining the complaint. The complainant and accused are residing in Palakkad and the drawee bank is also in Palakkad and the transaction took place at Ottappalam. But merely [Crl.M.C.1334/06] 3 because the lawyer who sent the notice is at Thodupuzha, it cannot confer jurisdiction in the court at Thoduuzha. The decision reported in Ahammedkutty Haji v. State of Kerala (2007(1) KLT 68) and Harman Electronic India Pvt. Ltd. v. National Panasonic India Pvt. Ltd. (2009(2) KLT 113(SC) were also cited in support of his contention. 5. There was no representation for counsel for first respondent. On going through the documents produced and particularly, the complaint, I find that there is no allegation in the complaint that the cheque was dishonoured for either of the two reasons stated in Section 138. The reason for return of the cheque is “cancellation of cheque new cheque issued”. This is not a reason falling under Section 138 and thereby the complaint lacks allegation on one of the ingredients. 6. I am satisfied from the dictum laid down in the two decisions cited above that offence under Section 138 N.I. Act will not be made out and the complaint is liable to be quashed. In the light of the two decisions cited [Crl.M.C.1334/06] 4 above, the court at Thodupuzha will not get jurisdiction to the offence. Hence, the following order is passed: Annexure-IV complaint, and further proceedings initiated against petitioner pursuant thereto, are quashed. Crl.M.C. is allowed. K.HEMA, JUDGE. krs.