IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 27TH MAY 2011 / 6TH JYAISHTA 1933 Crl.MC.No. 1536 of 2011 ------------------------- [CRL.M.P.NO.1707/2011 OF CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA] .................... PETITIONER/COMPLAINANT: ----------------------------------------- ANAS RAJAN, AGED 29 YEARS, S/O. HASSANUKKANNU RAJAN, SANOOJA MANZIL, KULASEKHARAPATHY, KUMBAZHA.P.O, PATHANAMTHITTA. BY ADVS. SRI.M.T.SURESHKUMAR, SRI.RAJA VIJAYARAGHAVAN. RESPONDENTS/ACCUSED AND STATE: --------------------------------------------------------- 1. NAJEEBKHAN, AGED 36 YEARS, ATHALA PADINJATTETHIL, MANJALLOOR, PATHANAPURAM.P.O, KOLLAM DISTRICT, PIN – 691 002. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. MANU. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.1536 of 2011 ==================================== Dated this the 27th day of May, 2011 O R D E R Public Prosecutor takes notice for the second respondent. Notice to the first respondent is dispensed with in view of the order I propose to pass and since the impugned order was passed without notice to the first respondent. 2. Petitioner filed a private complaint, Crl. M.P. No.1707 of 2011 in the court of learned Chief Judicial Magistrate, Pathanamthitta for offence punishable under Section 138 of the Negotiable Instruments Act. Petitioner alleged that first respondent borrowed `.2,00,000/- from him and issued cheque dated 10.02.2011 drawn on the Indian Bank, Kallimkadavu branch which was dishonoured for insufficiency of funds. After complying with formalities petitioner preferred the complaint before the learned Chief Judicial Magistrate. Learned Chief Judicial Magistrate by order dated 17.05.2011 has directed that the complaint be returned to the petitioner for presentation before proper court, placing reliance on the decision in Thressiamma CRL.M.C. No. 1536 of 2011 -: 2 :- v. State of Kerala (2010 (4) KLT 598) obviously for the reason that the drawee bank is situated at Kallimkadavu which is beyond the territorial jurisdiction of learned Chief Judicial Magistrate, Pathanamthitta so far as division of work made by the learned Chief Judicial Magistrate is concerned. Learned counsel submitted that learned Chief Judicial Magistrate has not referred to the averment in the complaint that the transaction and issuance of cheque were at the residence of petitioner at Kumbazha which is within the territorial limits of the learned Chief Judicial Magistrate. Learned counsel has placed reliance on the decision in Philipose v. Chandy (2009 (4) KLT 305) to support his contention that if part of the cause of action (i.e., transaction) has taken place within the jurisdictional limits of the learned Chief Judicial Magistrate, he could take cognizance of the offence. 3. I have gone through the complaint and find an averment in paragraph 1 of the complaint that first respondent borrowed the amount from the house of petitioner (at Kumbazha) and issued the cheque. It is seen from the impugned order that the learned Chief Judicial Magistrate has not considered this aspect of the matter. Learned Chief Judicial Magistrate has to consider that aspect also in deciding whether he has jurisdiction CRL.M.C. No. 1536 of 2011 -: 3 :- to entertain the complaint. I am also bear in mind that even cognizance is taken and process is issued to the first respondent it is open to the first respondent to challenge lack of territorial jurisdiction if any, of learned Chief Judicial Magistrate to take cognizance at the earliest stage and at any rate before commencement of trial as the Division Bench of this Court has held. In the circumstances, I am inclined to set aside the impugned order. Resultantly, Criminal Miscellaneous Case is allowed. The impugned order is set aside and the matter is remitted to the learned Chief Judicial Magistrate for fresh decision in the light of the averments in the complaint and the relevant law on the point. I make it clear that I have not expressed any opinion on the merit of the contention of petitioner, either way. Petitioner shall appear before the learned Chief Judicial Magistrate, Pathanamthitta on 06.06.2011. THOMAS P. JOSEPH, JUDGE. vsv